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i 


. 


'K 


ft 


AN  ESSAY 

i  * 


ON  THE 


RIAL  BY  JUR 


BY  LYSANDER  SPOONER., 


BOSTON: 

JOHN  P.  JEWETT  AND  COMPANY. 
CLEVELAND,  OHIO: 

JEWETT,  PROCTOR  &  WORTHINGTON. 
1852. 


Entered  according  to  Act  of  Congress,  in  the  year  1852,  by 
LYSANDEIl  SPOONER, 

In  the  Clerk’s  Office  of  the  District  Court  of  Massachusetts. 


NOTICE  TO  ENGLISH  PUBLISHERS. 

The  author  claims  the  copyright  of  this  book  in  England,  on  Common 
Law  principles,  without  regard  to  acts  of  parliament ;  and  if  the  main 
principle  of  the  book  itself  be  true,  viz.,  that  no  legislation,  in  conflict  with 
the  Common  Law,  is  of  any  validity,  his  claim  is  a  legal  one.  He  forbids 
any  one  to  reprint  the  book  without  his  consent. 


Stereotyped  by 
HOBART  &  ROBBINS ; 

New  England  Type  and  Stereotype  Foundery, 
BOSTON, 


34-0'4- 
S  U  4-  E 


NOTE. 

This  volume,  it  is  presumed  by  the  author,  gives  what  will  generally  be 
considered  satisfactory  evidence, —  though  not  all  the  evidence, —  of  what  the 
Common  Law  trial  by  jury  really  is.  In  a  future  volume,  if  it  should  be  called 
for,  it  is  designed  to  corroborate  the  grounds  taken  in  this  ;  give  a  concise  view 
of  the  English  constitution  ;  show  the  unconstitutional  character  of  the  existing 
government  in  England,  and  the  unconstitutional  means  by  which  the  trial 
by  jury  has  been  broken  down  in  practice  ;  prove  that,  neither  in  England  nor 
the  United  States,  have  legislatures  ever  been  invested  by  the  people  with  any 
authority  to  impair  the  powers,  change  the  oaths,  or  (with  few  exceptions) 
abridge  the  jurisdiction,  of  juries,  or  select  jurors  on  any  other  than  Common 
Law  principles  ;  and,  consequently,  that,  in  both  countries,  legislation  is  still 
constitutionally  subordinate  to  the  discretion  and  consciences  of  Common  Law 
juries,  in  all  cases,  both  civil  and  criminal,  in  which  juries  sit.  The  same 
volume  will  probably  also  discuss  several  political  and  legal  questions,  which 
will  naturally  assume  importance  if  the  trial  by  jury  should  be  reestablished. 


44343d 


CONTENTS 


PAGE 

CHAPTER' I.  THE  RIGHT_OF  JURIES  TO  JUDGE  OF  THE  JUS- 

TICEJOF  LAWS, . 5 

Section  1, . 5 

Section  2, . 11 

CHAPTER  n.  THE  TRIAL  BY  JURY,  AS  DEFINED  BY  MAGNA 

/  CARTA, . 20 

Section  1.  The  History  of  Magna  Carta,  .  .  .20 

(  Section  2.  The  Language  of  Magna  Carta,  .  .  25 

" 

CHAPTER  HI.  ADDITIONAL  JHOOFS  OF  THE  RIGHTS  AND  DU¬ 
TIES  OF  JURORS, . 51 

Section  1.  Weakness  of  the  Regal  Authority,  .  .  51 

Section  2.  The  Ancient  Common  Law  Juries  were  mere 

Courts  of  Conscience . 03 

Section  3.  The  Oaths  of  Jurors, . 85 

Section  4.  The  Right  of  Jurors  to  fix  the  Sentence,  .  91 

Section  5.  The  Oaths  of  Judges, . 98 

Section  6.  The  Coronation  Oath . 102 

CHAPTER  IV.  THE  RIGHTS  AND  DUTIES  OF  JURIES  IN  CIVIL 

SUITS, . 110 

CHAPTER  V.  OBJECTIONS  ANSWERED, . 123 

CHAPTER  VI.  JURIES  OF  THE  PRESENT  DAY  ILLEGAL,  .  142 

CHAPTER  VH.  ILLEGAL  JUDGES, . 157 

CHAPTER  Vin.  THE  FREE  ADMINISTRATION  OF  JUSTICE,  .  172 

CHAPTER  IX.  THE  CRIMINAL  INTENT, . 178 

CHAPTER  X.  MORAL  CONSIDERATIONS  FOR  JURORS,  .  .  189 

CHAPTER  XI.  AUTHORITY  OF  MAGNA  CARTA,  .  .  .  .192 

CHAPTER  Xn.  LIMITATIONS  IMPOSED  UPON  THE  MAJORITY 

BY  THE  TRIAL  BY  JURY, . 206 


APPENDIX —  Taxation, 


222 


TRIAL  BY  JURY. 


CHAPTER  I. 

THE  RIGHT  OF  JURIES  TO  JUDGE  OF  THE  JUSTICE  OF  LAWS. 


SECTION  I. 


Fok  more  than  six  hundred  years 


since  Magna 


Carta,  in  1215  —  there  has  been 


no 


that  is 

clearer  principle  of 

English  or  American  constitutional  law,  than  that,  in  criminal 
cases,  it  is  not  only  the  right  and  duty  of  juries  to  judge  what 
are  the  facts,  what  is  the  law,  and  what  was  the  moral  intent 
of  the  accused ;  but  that  it  is  also  their  right ,  and  their  pri¬ 
mary  and  paramount  duty ,  to  judge  of  the  justice  of  the  law , 
and  to  hold  all  laics  invalid ,  that  are ,  in  their  opinion ,  unjust 
or  oppressive ,  and  all  persons  guiltless  in  violating ,  or  resisting 
the  execution  of,  such  laws. 

(  Unless  such  be  the  right  and  duty  of  jurors,  it  is  plain  that, 
instead  of  juries  being  a  “palladium  of  liberty”  —  a  barrier 
K  against  the  tyranny  and  oppression  of  the  government  —  they 
are  really  mere  tools  in  its  hands,  for  carrying  into  execution 
any  injustice  and  oppression  it  may  desire  to  have  executed. 

But  for  their  right  to  judge  of  the  law,  and  the  justice  of 
the  law ,  juries  would  be  no  protection  to  an  accused  person, 
even  as  to  matters  of  fact ;  for,  if  the  government  can  dictate 
to  a  jury  any  law  whatever,  in  a  criminal  case,  it  can 
certainly  dictate  to  them  the  laws  of  evidence.  That  is,  it 
can  dictate  what  evidence  is  admissible,  and  what  inadmis¬ 
sible,  and  also  what  force  or  weight  is  to  be  given  to  the 
evidence  admitted.  And  if  the  government  can  thus  dictate 
to  a  jury  the  laws  of  evidence,  it  can  not  only  make  it  neces¬ 
sary  for  them  to  convict  on  a  partial  exhibition  of  the  evidence 
rightfully  pertaining  to  the  case,  but  it  can  even  require  them 
1* 


443436 


6 


TRIAL  BY  JURY. 


} 


to  convict  on  any  evidence  whatever  that  it  pleases  to  offer 
them. 

That  the  rights  and  duties  of  jurors  must  necessarily  be 
such  as  are  here  claimed  for  them,  will  be  evident  when  it  is 
considered  what  the  trial  by  jury  is,  and  what  is  its  object.. 

“  The  trial  by  jury”  then ,  is  a  “ trial  by  the  country ” — 
that  is,  by  the  people  —  as  distinguished  from  a  trial  by  the 
government. 

It  was  anciently  called  “trial  per  pais”  —  that  is,  “trial  by 
the  country.”  And  now,  in  every  criminal  trial,  the  jury  are 
told  that  the  accused  “  has,  for  trial,  put  himself  upon  the 
country  ;  which  country  you  (the  jury)  are.” 

The  object  of  this  trial  “  by  the  country or  by  the  people , 
in  preference  to  a  trial  by  the  government ,  is  to  guard  against 
every  species  of  oppression  by  the  government.  In  order  to 
effect  this  end ,  it  is  indispensable  that  the  people,  or  “  the 
country,”  judge  of  and  determine  their  own  liberties  against 
the  government  ;  instead  of  the  government' s  judging  of  and 
determining  its  oivn  powers  over  the  people.  How  is  it  possible 
that  juries  can  do  anything  to  protect  the  liberties  of  the  people 
against  the  government,  if  they  are  not  allowed  to  determine 
what  those  liberties  are  7 

Any  government,  that  is  its  own  judge  of,  and  determines 
authoritatively  for  the  people,  what  are  its  own  powers  over  the 
people,  is  an  absolute  government  of  course.  It  has  all  the 
powers  that  it  chooses  to  exercise.  There  is  no  other  —  or  at 
least  no  more  accurate  —  definition  of  a  despotism  than  this. 

On  the  other  hand,  any  people,  that  judge  of,  and  determine 
authoritatively  for  the  government,  what  are  their  own  liberties 
against  the  government,  of  course  retain  all  the  liberties  they 
wish  to  enjoy.  And  this  is  freedom.  At  least,  it  is  freedom 
to  them;  because,  although  it  may  be  theoretically  imper¬ 
fect,  it,  nevertheless,  corresponds  to  their  highest  notions  of 
freedom. 

To  secure  this  right  of  the  people  to  judge  of  their  own 
liberties  against  the  government,  the  jurors  are  taken,  (or  must 
be,  to  make  them  lawful  jurors,)  from  the  body  of  the  people,  by 
lot,  or  by  some  process  that  precludes  any  previous  knowledge, 
choice,  or  selection  of  them,  on  the  part  of  the  government. 


JURIES  JUDGES  OF  THE  JUSTICE  OF  LAWS. 


7 


This  is  done  to  prevent  the  government’s  constituting  a  jury 
of  its  own  partisans  or  friends;  in  other  words,  to  prevent  the 
government’s  packing  a  jury,  with  a  view  to  maintain  its  own 
laws,  and  accomplish  its  own  purposes. 

It  is  supposed  that,  if  twelve  men  be  taken,  by  lot ,  from  the 
mass  of  the  people,  without  the  possibility  of  any  previous 
knowledge,  choice,  or  selection  of  them,  on  the  part  of  the 
government,  the  jury  will  be  a  fair  epitome  of  “  the  country  ” 
at  large,  and  not  merely  of  the  party  or  faction  that  sustain 
the  measures  of  the  government;  that  substantially  all  classes 
of  opinions,  prevailing  among  the  people,  will  be  represented 
in  the  jury  ;  and  especially  that  the  opponents  of  the  gov¬ 
ernment,  (if  the  government  have  any  opponents,)  will  be  repre¬ 
sented  there,  as  well  as  its  friends;  that  the  classes,  who  are 
oppressed  by  the  laws  of  the  government,  (if  any  are  thus 
oppressed,)  will  have  their  representatives  in  the  jury,  as  well 
as  those  classes,  who  take  sides  with  the  oppressor  —  that  is, 
with  the  government. 

It  is  fairly  presumable  that  such  a  tribunal  will  agree  to  no 
conviction  except  such  as  substantially  the  whole  country 
would  agree  to,  if  they  were  present,  taking  part  in  the  trial. 
A  trial  by  such  a  tribunal  is,  therefore,  in  effect,  “a  trial  by 
the  country.”  In  its  results  it  probably  comes  as  near  to  a 
trial  by  the  whole  country,  as  any  trial  that  it  is  practicable 
to  have,  without  too  great  inconvenience  and  expense.  And 
as  unanimity  is  required  for  a  conviction,  it  follows  that  no 
one  can  be  convicted,  except  for  the  violation  of  such  laws  as 
substantially  the  whole  country  wish  to  have  maintained. 
The  government  can  enforce  none  of  its  laws,  (by  punishing 
offenders,  through  the  verdicts  of  juries,)  except  such  as  sub¬ 
stantially  the  whole  people  wish  to  have  enforced.  The  gov¬ 
ernment,  therefore,  consistently  with  the  trial  by  jury,  can 
exercise  no  powers  over  the  people,  (or,  what  is  the  same 
thing,  over  the  accused  person,  who  represents  the  rights  of 
the  people,)  except  such  as  substantially  the  whole  people 
of  the  country  consent  that  it  may  exercise.  In  such  a  trial, 
therefore,  “  the  country,”  or  the  people,  judge  of  and  determine 
their  own  liberties  against  the  government,  instead  of  the 


8 


TRIAL  BY  JURY. 


government’s  judging  of  and  determining  its  own  powers  over 
the  people. 

But  all  this  “  trial  by  the  country  ”  would  be  no  trial  at  all 
“by  the  country,”  but  only  a  trial  by  the  government,  if  the 
government  could  either  declare  who  may,  and  who  may  not, 
be  jurors,  or  could  dictate  to  the  jury  anything  whatever, 
either  of  law  or  evidence,  that  is  of  the  essence  of  the  trial. 

If  the  government  may  decide  who  may,  and  who  may  not, 
be  jurors,  it  will  of  course  select  only  its  partisans,  and  those 
friendly  to  its  measures.  It  may  not  only  prescribe  who  may, 
and  who  may  not,  be  eligible  to  be  drawn  as  jurors ;  but  it  may 
also  question  each  person  drawn  as  a  juror,  as  to  his  senti¬ 
ments  in  regard  to  the  particular  law  involved  in  each  trial, 
before  suffering  him  to  be  sworn  on  the  panel ;  and  exclude 
him  if  he  be  found  unfavorable  to  the  maintenance  of  such  a 
law.* 

So,  also,  if  the  government  may  dictate  to  the  jury  what 
laws  they  are  to  enforce ,  it  is  no  longer  a  “  trial  by  the  country,” 


*  To  show  that  this  supposition  is  not  an  extravagant  one,  it  may  be  mentioned  that 
courts  have  repeatedly  questioned  jurors  to  ascertain  whether  they  were  prejudiced 
against  the  government  —  that  is,  whether  they  were  in  favor  of,  or  opposed  to,  such  laws 
of  the  government  as  were  to  be  put  in  issue  in  the  then  pending  trial.  This  was  done 
(in  1S51)  in  the  United  States  District  Court  for  the  District  of  Massachusetts,  by  Peleg 
Sprague,  the  United  States  district  judge,  in  empanelling  three  several  juries  for 
the  trials  of  Scott,  Ilayden,  aud  Morris,  charged  with  having  aided  in  the  rescue  of  a 
fugitive  slave  from  the  custody  of  the  United  States  deputy  marshal.  This  judge 
caused  the  following  question  to  be  propounded  to  all  the  jurors  separately  ;  and  those 
who  answered  unfavorably  for  the  purposes  of  the  government,  were  excluded  from  the 
panel. 

“  Be  you  hold  any  opinions  upon  the  subject  of  the  Fugitive  Slave  Law,  so  called, 
which  will  induce  you  to  refuse  to  convict  a  person  indicted  under  it,  if  the  facts  set 
forth  in  the  indictment,  and  constituting  the  offence,  are  proved  against  him,  and  the 
court  direct  you  that  the  law  is  constitutional  1  ” 

The  reason  of  this  question  was,  that  “  the  Fugitive  Slave  Law,  so  called,”  was  so 
obnoxious  to  a  large  portion  of  the  people,  as  to  render  a  conviction  under  it  hopeless, 
if  the  jurors  were  taken  indiscriminately  from  among  the  people. 

A  similar  question  was  soon  afterwards  propounded  to  the  persons  drawn  as  jurors  in 
the  United  States  Circuit  Court  for  the  District  of  Massachusetts,  by  Benjamin  R. 
Curtis,  one  of  the  Justices  of  the  Supreme  Court  of  the  United  States,  in  empanelling 
a  ju>  j  for  the  trial  of  the  aforesaid  Morris  on  the  charge  before  mentioned  ;  aud  those 
who  lid  not  answer  the  question  favorably  for  the  government  were  again  excluded 
from  the  panel. 

It  has  also  been  an  habitual  practice  with  the  Supreme  Court  of  Massachusetts,  in 
empanelling  juries  for  the  trial  of  capital  offences,  to  inquire  of  tho  persons  drawn  as 
jurors  whether  they  had  any  conscientious  scruples  against  finding  verdicts  of  guilty 


JURIES  JUDGES  OF  THE  JUSTICE  OF  LAWS. 


9 


but  a  trial  by  the  government;  because  the  jury  then  try  the 
accused,  not  by  any  standard  of  their  own  —  not  by  thtir 
own  judgments  of  their  rightful  liberties  —  but  by  a  standard 
dictated  to  them  by  the  government.  And  the  standard,  thus 
dictated  by  the  government,  becomes  the  measure  of  the  pop¬ 
ple’s  liberties.  If  the  government  dictate  the  standard  of  trial, 
it  of  course  dictates  the  results  of  the  trial.  And  such  a  trial 
is  no  trial  by  the  country,  but  only  a  trial  by  the  government ; 
and  in  it  the  government  determines  what  are  its  own  powers 
over  the  people,  instead  of  the  people’s  determining  what  an: 
their  own  liberties  against  the  government.  In  short,  if  the 
jury  have  no  right  to  judge  of  the  justice  of  a  law  of  the  gov¬ 
ernment,  they  plainly  can  do  nothing  to  protect  the  people 
against  the  oppressions  of  the  government;  for  there  are  no 
oppressions  which  the  government  may  not  authorize  by  law. 

The  jury  are  also  to  judge  whether  the  laws  are  rightly  ex¬ 
pounded  to  them  by  the  court.  Unless  they  judge  on  this 
point,  they  do  nothing  to  protect  their  liberties  against  the 
oppressions  that  are  capable  of  being  practised  under  cover  of 
a  corrupt  exposition  of  the  laws.  If  the  judiciary  can  authori¬ 
tatively  dictate  to  a  jury  any  exposition  of  the  law,  they  can 
dictate  to  them  the  law  itself,  and  such  laws  as  they  please; 
because  laws  are,  in  practice,  one  thing  or  another,  according 
as  they  are  expounded. 


in  such  cases  ;  that  is,  whether  they  had  any  conscientious  scruples  against  sustaining 
the  law  prescribing  death  as  the  punishment  of  the  crime  to  be  tried  ;  and  to  excludo 
from  the  panel  all  who  answered  in  the  affirmative. 

The  only  principle  upon  which  these  questions  are  asked,  is  this  —  that  no  man  shall 
be  allowed  to  serve  as  juror,  unless  he  be  ready  to  enforce  any  enactment  of  the  gov¬ 
ernment,  however  cruel  or  tyrannical  it  may  be. 

What  is  such  a  jury  good  for,  as  a  protection  against  the  tyranny  of  the  govern¬ 
ment  1  A  jury  like  that  is  palpably  nothing  but  a  mere  tool  of  oppression  in  the 
hands  of  the  government.  A  trial  by  such  a  jury  is  really  a  trial  by  the  government 
itself —  and  not  a  trial  by  the  country  —  because  it  is  a  trial  only  by  men  specialjy 
selected  by  the  government  for  their  readiness  to  enforce  its  own  tyrannical  measures. 

If  that  be  the  true  principle  of  the  trial  by  jury,  the  trial  is  utterly  worthless  as  a 
security  to  liberty.  The  Czar  might,  with  perfect  safety  to  his  authority,  introduce  the 
trial  by  jury  into  Russia,  if  ho  could  but  be  permitted  to  select  his  jurors  from  those 
who  were  ready  to  maintain  his  laws,  without  regard  to  their  injustice. 

This  example  is  sufficient  to  show  that  the  very  pith  of  the  trial  by  jury,  as  a  safe¬ 
guard  to  liberty,  consists  in  the  jurors  being  taken  indiscriminately  from  the  whole 
people,  and  in  their  right  to  hold  invalid  all  laws  which  they  think  unjust. 


10 


TRIAL  BY  JURY. 


The  jury  must  also  judge  whether  there  really  be  any  such 
law,  (be  it  good  or  bad,)  as  the  accused  is  charged  with 
having  transgressed.  Unless  they  judge  on  this  point,  the 
people  are  liable  to  have  their  liberties  taken  from  them  by 
brute  force,  without  any  law  at  all. 

The  jury  must  also  judge  of  the  laws  of  evidence.  If  the 
government  can  dictate  to  a  jury  the  laws  of  evidence,  it  can 
not  only  shut  out  any  evidence  it  pleases,  tending  to  vindicate 
the  accused,  but  it  can  require  that  any  evidence  whatever, 
that  it  pleases  to  offer,  be  held  as  conclusive  proof  of  any 
offence  whatever  which  the  government  chooses  to  allege. 

It  is  manifest,  therefore,  that  the  jury  must  judge  of  and  try 
the  whole  case,  and  every  part  and  parcel  of  the  case,  free 
of  any  dictation  or  authority  on  the  part  of  the  government. 
They  must  judge  of  the  existence  of  the  law;  of  the  true 
exposition  of  the  law ;  of  the  justice  of  the  law  ;  and  of  the 
admissibility  and  weight  of  all  the  evidence  offered ;  otherwise 
the  government  will  have  everything  its  own  way;  the  jury 
will  be  mere  puppets  in  the  hands  of  the  government;  and  the 
trial  will  be,  in  reality,  a  trial  by  the  government,  and  not  a 
“  trial  by  the  country.”  By  such  trials  the  government  will 
determine  its  own  powers  over  the  people,  instead  of  the  peo¬ 
ple’s  determining  their  own  liberties  against  the  government; 
and  it  will  be  an  entire  delusion  to  talk,  as  for  centuries  we 
have  done,  of  the  trial  by  jury,  as  a  “palladium  of  liberty,” 
or  as  any  protection  to  the  people  against  the  oppression  and 
tyranny  of  the  government. 

The  question,  then,  between  trial  by  jury,  as  thus  described, 
and  trial  by  the  government,  is  simply  a  question  between 
liberty  and  despotism.  The  authority  to  judge  what  are  the 
powers  of  the  government,  and  what  the  liberties  of  the  people, 
must  necessarily  be  vested  in  one  or  the  other  of  the  parties 
themselves  —  the  government,  or  the  people;  because  there  is 
no  third  party  to  whom  it  can  be  entrusted.  If  the  authority 
be  vested  in  the  government,  the  government  is  absolute,  and 
the  people  have  no  liberties  except  such  as  the  government 
sees  fit  to  indulge  them  with.  If,  on  the  other  hand,  that 
authority  be  vested  in  the  people,  then  the  people  have  all 
liberties,  (as  against  the  government,)  except  such  as  substan- 


JURIES  JUDGES  OF  THE  JUSTICE  OF  LAWS. 


11 


tially  the  whole  people  (through  a  jury)  choose  to  disclaim; 
and  the  government  can  exercise  no  power  except  such  as 
substantially  the  whole  people  (through  a  jury)  consent  that 
it  may  exercise. 


SECTION  II. 

The  force  and  justice  of  the  preceding  argument  cannot  be 
evaded  by  saying  that  the  government  is  chosen  by  the  people; 
that,  in  theory,  it  represents  the  people;  that  it  is  designed  to 
do  the  will  of  the  people;  that  its  members  are  all  sworn  to 
observe  the  fundamental  or  constitutional  law  instituted  by 
the  people;  that  its  acts  are  therefore  entitled  to  be  considered 
the  acts  of  the  people;  and  that  to  allow  a  jury,  representing 
the  people,  to  invalidate  the  acts  of  the  government,  would 
therefore  be  arraying  the  people  against  themselves. 

There  are  two  answers  to  such  an  argument. 

One  answer  is,  that,  in  a  representative  government,  there 
is  no  absurdity  or  contradiction,  nor  any  arraying  of  the  people 
against  themselves,  in  requiring  that  the  statutes  or  enactments 
of  the  government  shall  pass  the  ordeal  of  any  number  of  sep¬ 
arate  tribunals,  before  it  shall  be  determined  that  they  are  to 
have  the  force  of  laws.  Our  American  constitutions  have 
provided  five  of  these  separate  tribunals,  to  wit,  representatives, 
senate,  executive,*  jury,  and  judges;  and  have  made  it  neces¬ 
sary  that  each  enactment  shall  pass  the  ordeal  of  all  these 
separate  tribunals,  before  its  authority  ean  be  established  by 
the  punishment  of  those  who  choose  to  transgress  it.  And 
there  is  no  more  absurdity  or  inconsistency  in  making  a  jury 
one  of  these  several  tribunals,  than  there  is  in  making  the  rep¬ 
resentatives,  or  the  senate,  or  the  executive,  or  the  judges,  one 
of  them.  There  is  no  more  absurdity  in  giving  a  jury  a  veto 
upon  the  laws,  than  there  is  in  giving  a  veto  to  each  of  these 
other  tribunals.  The  people  are  no  more  arrayed  against 
themselves,  when  a  jury  puts  its  veto  upon  a  statute,  which 
the  other  tribunals  have  sanctioned,  than  they  are  when  the 

*  The  executive  has  a  qualified  veto  upon  the  passage  of  laws,  iu  most  of  our  govern¬ 
ments,  and  an  absolute  veto,  in  all  of  them,  upon  the  execution  of  any  laws  which  he 
deems  unconstitutional ;  bocause  his  oath  to  support  the  constitution  (as  he  understands 
it)  forbids  him  to  execute  any  law  that  he  deems  unconstitutionaL 


12 


TRIAL  BY  JURY. 


same  veto  is  exercised  by  the  representatives,  the  senate,  the 
executive,  or  the  judges. 

hut  another  answer  to  the  argument  that  the  people  are 
arrayed  against  themselves,  when  a  jury  hold  an  enactment 
of  the  government  invalid,  is,  that  the  government,  and  all  the 
departments  of  the  government,  are  merely  the  servants  and 
agents  of  the  people;  not  invested  with  arbitrary  or  absolute 
authority  to  bind  the  people,  but  required  to  submit  all  their 
enactments  to  the  judgment,  of  a  tribunal  more  fairly  repre¬ 
senting  the  whole  people,  before  they  carry  them  into  exe¬ 
cution,  by  punishing  any  individual  for  transgressing  them. 
If  the  government  were  not  thus  required  to  submit  their 
enactments  to  the  judgment  of  “the  country,”  before  exe¬ 
cuting  them  upon  individuals  —  if,  in  other  words,  the  people 
had  reserved  to  themselves  no  veto  upon  the  acts  of  the  gov¬ 
ernment,  the  government,  instead  of  being  a  mere  servant 
and  agent  of  the  people,  would  be  an  absolute  despot  over  the 
people.  It  would  have  all  power  in  its  own  hands;  because 
the  power  to  punish  carries  all  other  powers  with  it.  A 
power  that  can,  of  itself,  and  by  its  own  authority,  punish 
disobedience,  can  compel  obedience  and  submission,  and  is 
above  all  responsibility  for  the  character  of  its  laws.  In 
short,  it  is  a  despotism. 

And  it  is  of  no  consequence  to  inquire  how  a  government 
came  by  this  power  to  punish,  whether  by  prescription,  by 
inheritance,  by  usurpation,  or  by  delegation  from  the  people! 
If  it  have  now  but  got  it ,  the  government  is  absolute. 

It  is  plain,  therefore,  that  if  the  people  have  invested  the 
government  with  power  to  make  laws  that  absolutely  bind 
the  people,  and  to  punish  the  people  for  transgressing  those 
laws,  the  people  have  surrendered  their  liberties  unreservedly 
into  the  hands  of  the  government. 

It  is  of  no  avail  to  say,  in  answer  to  this  view  of  the  case, 
that  in  surrendering  their  liberties  into  the  hands  of  the  gov¬ 
ernment,  the  people  took  an  oath  from  the  government,  that  it 
would  exercise  its  power  within  certain  constitutional  limits ;  for 
when  did  oaths  ever  restrain  a  government  that  was  otherwise 
unrestrained  ?  Or  when  did  a  government  fail  to  determine 
that  all  its  acts  were  within  the  constitutional  and  authorized 


JURIES  JUDGES  OF  THE  JUSTICE  OF  LAWS. 


13 


limits  of  its  power,  if  it  were  permitted  to  determine  that 
question  for  itself  ? 

Neither  is  it  of  any  avail  to  say,  that,  if  the  government 
abuse  its  power,  and  enact  unjust  and  oppressive  laws,  the 
government  may  be  changed  by  the  influence  of  discussion, 
and  the  exercise  of  the  right  of  suffrage.  Discussion  can  do 
nothing  to  prevent  the  enactment,  or  procure  the  repeal,  of 
unjust  laws,  unless  it  be  understood  that  the  discussion  is  to 
be  followed  by  resistance.  Tyrants  care  nothing  for  discus¬ 
sions  that  are  to  end  only  in  discussion.  Discussions,  which 
do  not  interfere  with  the  enforcement  of  their  laws,  are  but 
idle  wind  to  them.  Suffrage  is  equally  powerless  and  unre¬ 
liable.  It  can  be  exercised  only  periodically;  and  the  tyranny 
must  at  least  be  borne  until  the  time  for  suffrage  comes.  Be¬ 
sides,  when  the  suffrage  is  exercised,  it  gives  no  guaranty  for 
the  repeal  of  existing  laws  that  are  oppressive,  and  no  security 
against  the  enactment  of  new  ones  that  are  equally  so.  The 
second  body  of  legislators  are  liable  and  likely  to  be  just  as 
tyrannical  as  the  first.  If  it  be  said  that  the  second  body 
may  be  chosen  for  their  integrity,  the  answer  is,  that  the  first 
were  chosen  for  that  very  reason,  and  yet  proved  tyrants. 
The  second  will  be  exposed  to  the  same  temptations  as  the 
first,  and  will  be  just  as  likely  to  prove  tyrannical.  Who 
ever  heard  that  succeeding  legislatures  were,  on  the  whole, 
more  honest  than  those  that  preceded  them?  What  is  there 
in  the  nature  of  men  or  things  to  make  them  so?  If  it  be  said 
that  the  first  body  were  chosen  from  motives  of  injustice,  that 
fact  proves  that  there  is  a  portion  of  society  who  desire  to 
establish  injustice;  and  if  they  were  powerful  or  artful  enough 
to  procure  the  election  of  their  instruments  to  compose  the 
first  legislature,  they  will  be  likely  to  be  powerful  or  artful 
enough  to  procure  the  election  of  the  same  or  similar  instru¬ 
ments  to  compose  the  second.  The  right  of  suffrage,  therefore, 
and  even  a  change  of  legislators,  guarantees  no  change  of  legis¬ 
lation —  certainly  no  change  for  the  better.  Even  if  a  change 
for  the  better  actually  comes,  it  comes  too  late,  because  it  comes 
only  after  more  or  less  injustice  has  been  irreparably  done. 

But,  at  best,  the  right  of  suffrage  can  be  exercised  only  pe¬ 
riodically;  and  between  the  periods  the  legislators  are  wholly 
2 


14 


TRIAL  BY  JURY. 


irresponsible.  No  despot  was  ever  more  entirely  irresponsible 
than  are  republican  legislators  during  the  period  for  which 
they  are  chosen.  They  can  neither  be  removed  from  their 
office,  nor  called  to  account  while  in  their  office,  nor  punished 
after  they  leave  their  office,  be  their  tyranny  what  it  may. 
Moreover,  the  judicial  and  executive  departments  of  the  gov¬ 
ernment  are  equally  irresponsible  to  the  people,  and  are  only 
responsible,  (by  impeachment,  and  dependence  for  their  sala¬ 
ries),  to  these  irresponsible  legislators.  This  dependence  of 
the  judiciary  and  executive  upon  the  legislature  is  a  guaranty 
that  they  will  always  sanction  and  execute  its  laws,  whether 
just  or  unjust.  Thus  the  legislators  hold  the  whole  power 
of  the  government  in  their  hands,  and  are  at  the  same  time 
utterly  irresponsible  for  the  manner  in  which  they  use  it. 

If,  now,  this  government,  (the  three  branches  thus  really 
united  in  one),  can  determine  the  validity  of,  and  enforce,  its 
own  laws,  it  is,  for  the  time  being,  entirely  absolute,  and 
wholly  irresponsible  to  the  people. 

But  this  is  not  all.  These  legislators,  and  this  government, 
so  irresponsible  while  in  power,  can  perpetuate  their  power 
at  pleasure,  if  they  can  determine  what  legislation  is  author¬ 
itative  upon  the  people,  and  can  enforce  obedience  to  it ;  for 
they  can  not  only  declare  their  power  perpetual,  but  they  can 
enforce  submission  to  all  legislation  that  is  necessary  to  secure 
its  perpetuity.  They  can,  for  example,  prohibit  ail  discussion 
of  the  rightfulness  of  their  authority;  forbid  the  use  of  the  suf¬ 
frage;  prevent  the  election  of  any  successors;  disarm,  plunder, 
imprison,  and  even  kill  all  who  refuse  submission.  If,  there¬ 
fore,  the  government  (all  departments  united)  be  absolute  fora 
day  —  that  is,  if  it  can,  for  a  day,  enforce  obedience  to  its  own 
laws  —  it  can,  in  that  day,  secure  its  power  for  all  time  —  like 
the  queen,  who  wished  to  reign  but  for  a  day,  but  in  that  day- 
caused  the  king,  her  husband,  to  be  slain,  and  usurped  his  throne. 

Nor  will  it  avail  to  say  that  such  acts  would  be  unconstitu¬ 
tional,  and  that  unconstitutional  acts  may  be  lawfully  resisted; 
for  everything  a  government  pleases  to  do  will,  of  course,  be 
determined  to  be  constitutional,  if  the  government  itself  be  per¬ 
mitted  to  determine  the  question  of  the  constitutionality  of  its 
own  acts.  Those  who  are  capable  of  tyranny,  are  capable  of 
perjury  to  sustain  it. 


JURIES  JUDGES  OF  THE  JUSTICE  OF  LAWS. 


15 


The  conclusion,  therefore,  is,  that  any  government,  that  can, 
for  a  day,  enforce  its  own  laws,  without  appealing  to  the  peo¬ 
ple,  (or  to  a  tribunal  fairly  representing  the  people,)  for  their 
consent,  is,  in  theory,  an  absolute  government,  irresponsible  to 
the  people,  and  can  perpetuate  its  power  at  pleasure. 

The  trial  by  jury  is  based  upon  a  recognition  of  this  prin¬ 
ciple,  and  therefore  forbids  the  government  to  execute  any  of 
its  laws,  by  punishing  violators,  in  any  case  whatever,  with¬ 
out  first  getting  the  consent  of  “the  country,”  or  the  people, 
through  a  jury.  In  this  way,  the  people,  at  ail  times,  hold 
their  liberties  in  their  own  hands,  and  never  surrender  them, 
even  for  a  moment,  into  the  hands  of  the  government. 

The  trial  by  jury,  then,  gives  to  any  and  every  individual 
the  liberty,  at  any  time,  to  disregard  or  resist  any  law  what¬ 
ever  of  the  government,  if  he  be  willing  to  submit  to  the 
decision  of  a  jury,  the  questions,  whether  the  law  be  intrin¬ 
sically  just  and  obligatory?  and  whether  his  conduct,  in  disre¬ 
garding  or  resisting  it,  were  right  in  itself?  And  any  law, 
which  does  not,  in  such  trial,  obtain  the  unanimous  sanction 
of  twelve  men,  taken  at  random  from  the  people,  and  judging 
according  to  the  standard  of  justice  in  their  own  minds,  free 
from  all  dictation  and  authority  of  the  government,  may 
be  transgressed  and  resisted  with  impunity,  by  whomsoever 
pleases  to  transgress  or  resist  it.* 

The  trial  by  jury  authorizes  all  this,  or  it  is  a  sham  and 
a  hoax,  utterly  worthless  for  protecting  the  people  against 
oppression.  If  it  do  not  authorize  an  individual  to  resist  the 
first  and  least  act  of  injustice  or  tyranny,  on  the  part  of  the 
government,  it  does  not  authorize  him  to  resist  the  last  and  the 
greatest.  If  it  do  not  authorize  individuals  to  nip  tyranny  in 
the  bud,  it  does  not  authorize  them  to  cut  it  down  when  its 
branches  are  filled  with  the  ripe  fruits  of  plunder  and 
oppression. 

Those  who  deny  the  right  of  a  jury  to  protect  an  individual 
in  resisting  an  unjust  law  of  the  government,  deny  him  all 


*  And  if  there  be  so  much  as  a  reasonable  doubt  of  the  justice  of  the  laws,  the 
benefit  of  that  doubt  must  bo  given  to  the  defendant,  and  not  to  the  government.  So 
thao  the  government  must  keep  its  laws  clearly  within  the  limits  of  justice,  if  it  would 
ask  a  jury  to  enforce  them. 


16 


TRIAL  BY  JURY. 


logoi  defence  whatsoever  against  oppression.  The  right  of 
revolution,  which  tyrants,  in  mockery,  accord  to  mankind,  is 
no  legal  right  wider  a  government;  it  is  only  a  natural  right 
to  overturn  a  government.  The  government  itself  never 
acknowledges  this  right.  And  the  right  is  practically  estab¬ 
lished  only  when  and  because  the  government  no  longer  exists 
to  cal!  it  in  question.  The  right,  therefore,  can  be  exercised 
with  impunity,  only  when  it  is  exercised  victoriously.  All 
unsuccessful  attempts  at  revolution,  however  justifiable  in 
themselves,  are  punished  as  treason,  if  the  government  be 
permitted  to  judge  of  the  treason.  The  government  itself 
never  admits  the  injustice  of  its  laws,  as  a  legal  defence  for 
those  who  have  attempted  a  revolution,  and  failed.  The  right 
of  revolution,  therefore,  is  a  right  of  no  practical  value,  except 
for  those  who  are  stronger  than  the  government.  So  long, 
therefore,  as  the  oppressions  of  a  government  are  kept  rvithin 
such  limits  as  simply  not  to  exasperate  against  it  a  power 
greater  than  its  own,  the  right  of  revolution  cannot  be 
appealed  to,  and  is  therefore  inapplicable  to  the  case.  This 
affords  a  wide  field  for  tyranny ;  and  if  a  jury  cannot  here. 
intervene,  the  oppressed  are  utterly  defenceless, 

I  It  is  manifest  that  the  only  security  against  the  tyranny  of 
the  government  lies  in  forcible  resistance  to  the  execution  of 
the  injustice;  because  the  injustice  will  certainly  be  executed, 
unless  it  be  forcibly  resisted.  And  if  it  be  but  suffered  to  be 
executed,  it  must  then  be  borne;  for  the  government  never 
makes  compensation  for  its  own  wrongs. 

Since,  then,  this  forcible  resistance  to  the  injustice  of  the 
government  is  the  only  possible  means  of  preserving  liberty, 
it  is  indispensable  to  all  legal  liberty  that  this  resistance 
should  be  legalized.  It  is  perfectly  self-evident  that  where 
there  is  no  legal  right  to  resist  the  oppression  of  the  govern¬ 
ment,  there  can  be  no  legal  liberty.  And  here  it  is  all-impor¬ 
tant  to  notice,  that,  'practically  speaking,  there  can  be  no  legal 
right  to  resist  the  oppressions  of  the  government,  unless  there 
be  some  legal  tribunal,  other  than  the  government,  and  wholly 
independent  of,  and  above,  the  government,  to  judge  between 
the  government  and  those  who  resist  its  oppressions;  in  other 
words,  to  judge  what  laws  of  the  government  are  to  be 


JURIES  JUDGES  OF  THE  JUSTICE  OF  LAWS.  17 

obeyed,  and  what  may  be  resisted  and  held  for  nought.  The 
only  tribunal  known  to  our  laws,  for  this  purpose,  is  a  jury. 
If  a  jury  have  not  the  right  to  judge  between  the  government 
and  those  who  disobey  its  laws,  and  resist  its  oppressions,  the 
government  is  absolute,  and  the  people,  legally  speaking,  are 
slaves.  Like  many  other  slaves  they  may  have  sufficient 
courage  and  strength  to  keep  their  masters  somewhat  in 
check  ;  but  they  are  nevertheless  known  to  the  law  only  as 
slaves. 

That  this  right  of  resistance  was  recognized  as  a  common 
law  right,  when  the  ancient  and  genuine  trial  by  jury  was  in 
force,  is  not  only  proved  by  the  nature  of  the  trial  itself,  but 
is  acknowledged  by  history.* 

This  right  of  resistance  is  recognized  by  the  constitution  of 
the  United  States,  as  a  strictly  legal  and  constitutional  right. 
It  is  so  recognized,  first  by  the  provision  that  “the  trial  of  all 
crimes,  except  in  cases  of  impeachment,  shall  be  by  jury”  — 
that  is,  by  the  country  —  and  not  by  the  government;  sec¬ 
ondly,  by  the  provision  that  “  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed.”  This  constitutional 
security  for  “  the  right  to  keep  and  bear  arms,”  implies  the 
right  to  use  them  —  as  much  as  a  constitutional  security  for 
the  right  to  buy  and  keep  food  would  have  implied  the  right 
to  eat  it.  The  constitution,  therefore,  takes  it  for  granted  that 


*  Hallam  says,  “  The  relation  established  between  a  lord  and  his  vassal  by  the  feudal 
tenure,  far  from  containing  principles  of  any  servile  and  implicit  obedience,  permitted 
the  compact  to  be  dissolved  in  case  of  its  violation  by  either  party.  This  extended  as 
much  to  the  sovereign  as  to  inferior  lords.  *  *  If  a  vassal  was  aggrieved,  and  if 

justice  was  denied  him,  he  sent  a  defiance,  that  is,  a  renunciation  of  fealty  to  the  king, 
and  was  entitled  to  enforce  redress  at  the  point  of  his  sword.  It  then  became  a  contest 
of  strength  as  between  two  independent  potentates,  and  was  terminated  by  treaty, 
advantageous  or  otherwise,  according  to  the  fortune  of  war.  *  *  There  remained 

the  original  principle,  that  allegiance  depended  conditionally  upon  good  treatment,  and 
that  an  appeal  might  be  lawfully  made  to  arms  against  an  oppressive  government.  Nor 
was  this,  we  may  be  sure ,  left  for  extreme  necessity,  or  thought  to  require  a  long- 
enduring  forbearance.  In  modern  times,  a  king,  compelled  by  his  subjects’  swords  to 
abandon  any  pretension,  would  be  supposed  to  have  ceased  to  reign  ;  and  the  express 
recognition  of  such  a  right  as  that  of  insurrection  has  been  justly  deemed  inconsistent 
with  the  majesty  of  law.  But  ruder  ages  had  ruder  sentiments.  Force  was  necessary 
to  repel  force  ;  and  men  accustomed  to  see  the  king’s  authority  defied  by  a  private  riot, 
were  not  much  shocked  when  it  was  resisted  in  defence  of  public  freedom.”  — 3  Middle 
Ages,  210-2. 


2* 


18 


TRIAL  BY  JURY. 


the  people  will  judge  of  the  conduct  of  the  government,  and 
that,  as  they  have  the  right,  they  will  also  have  the  sense,  to 
use  arms,  whenever  the  necessity  of  the  case  justifies  it.  And 
it  is  a  sufficient  and  legal  defence  for  a  person  accused  of 
using  arms  against  the  government,  if  he  can  show,  to  the 
satisfaction  of  a  jury,  or  even  any  one  of  a  jury ,  that  the  law 
he  resisted  was  an  unjust  one. 

In  the  American  State  constitutions  also,  this  right  of  resist¬ 
ance  to  the  oppressions  of  the  government  is  recognized,  in 
various  ways,  as  a  natural,  legal,  and  constitutional  right.  In 
the  first  place,  it  is  so  recognized  by  provisions  establishing 
the  trial  by  jury;  thus  requiring  that  accused  persons  shall  be 
tried  by  “  the  country,”  instead  of  the  government.  In  the 
second  place,  it  is  recognized  by  many  of  them,  as,  for 
example,  those  of  Massachusetts,  Maine,  Vermont,  Connect¬ 
icut,  Pennsylvania,  Ohio,  Indiana,  Michigan,  Kentucky,  Ten¬ 
nessee,  Arkansas,  Mississippi,  Alabama,  and  Florida,  by 
provisions  expressly  declaring  that  the  people  shall  have  the 
right  to  bear  arms.  In  many  of  them  also,  as,  for  example, 
those  of  Maine,  New  Hampshire,  Vermont,  Massachusetts, 
New  Jersey,  Pennsylvania,  Delaware,  Ohio,  Indiana,  Illinois, 
Florida,  Iowa,  and  Arkansas,  by  provisions,  in  their  bills  of 
rights,  declaring  that  men  have  a  natural,  inherent,  and 
inalienable  right  of  “  defending  their  lives  and  liberties.” 
This,  of  course,  means  that  they  have  a  right  to  defend  them 
against  any  injustice  on  the  part  of  the  government ,  and  not 
merely  on  the  part  of  private  individuals:  because  the  object 
of  all  bills  of  rights  is  to  assert  the  rights  of  individuals  and 
the  people,  as  against  the  government ,  and  not  as  against 
private  persons.  It  would  be  a  matter  of  ridiculous  superero¬ 
gation  to  assert,  in  a  constitution  of  government,  the  natural 
right  of  men  to  defend  their  lives  and  liberties  against  private 
trespassers. 

Many  of  these  bills  of  rights  also  assert  the  natural  right 
of  all  men  to  protect  their  property  —  that  is,  to  protect  it 
against  the  government.  It  would  be  unnecessary  and  silly 
indeed  to  assert,  in  a  constitution  of  government,  the  natural 
right  of  individuals  to  protect  their  property  against  thieves 
and  robbers. 


JURIES  JUDGES  OF  THE  JUSTICE  OF  LAWS. 


19 


The  constitutions  of  New  Hampshire  and  Tennessee  also 
declare  that  “  The  doctrine  of  non-resistance  against  arbitrary- 
power  and  oppression  is  absurd,  slavish,  and  destructive  of 
the  good  and  happiness  of  mankind.” 

The  legal  effect  of  these  constitutional  recognitions  of  the 
right  of  individuals  to  defend  their  property,  liberties,  and  lives, 
against  the  government,  is  to  legalize  resistance  to  all  injustice 
and  oppression,  of  every  name  and  nature  whatsoever,  on  the 
part  of  the  government. 

But  for  this  right  of  resistance,  on  the  part  of  the  people, 
all  governments  would  become  tyrannical  to  a  degree  of  which 
few  people  are  aware.  Constitutions  are  utterly  worthless  to 
restrain  the  tyranny  of  governments,  unless  it  be  understood 
that  the  people  will,  by  force,  compel  the  government  to  keep 
within  the  constitutional  limits.  Practically  speaking,  no 
government  knows  any  limits  to  its  power,  except  the 
endurance  of  the  people.  But  that  the  people  are  stronger 
than  the  government,  and  will  resist  in  extreme  cases,  our  gov¬ 
ernments  would  be  little  or  nothing  else  than  organized  systems 
of  plunder  and  oppression.  All,  or  nearly  all,  the  advantage 
there  is  in  fixing  any  constitutional  limits  to  the  power  of  a 
government,  is  simply  to  give  notice  to  the  government  of  the 
point  at  which  it  will  meet  with  resistance.  If  the  people  are 
then  as  good  as  their  word,  they  may  keep  the  government 
within  the  bounds  they  have  set  for  it;  otherwise  it  will  disre¬ 
gard  them  —  as  is  proved  by  the  example  of  all  our  American 
governments,  in  which  the  constitutions  have  all  become  obso¬ 
lete,  at  the  moment  of  their  adoption,  for  nearly  or  quite  all 
purposes  except  the  appointment  of  officers,  who  at  once 
become  practically  absolute,  except  so  far  as  they  are  restrained 
by  the  fear  of  popular  resistance. 

The  bounds  set  to  the  power  of  the  government,  by  the  trial 
by  jury,  as  will  hereafter  be  shown,  are  these — that  the  gov¬ 
ernment  shall  never  touch  the  property,  person,  or  natural  or 
civil  rights  of  an  individual,  against  his  consent,  (except  for 
the  purpose  of  bringing  them  before  a  jury  for  trial,)  unless  in 
pursuance  and  execution  of  a  judgment,  or  decree,  rendered 
by  a  jury  in  each  individual  case,  upon  such  evidence,  and 
such  law,  as  are  satisfactory  to  their  own  understandings  and 
consciences,  irrespective  of  all  legislation  of  the  government. 


CHAPTER  II. 


THE  TRIAL  BY  JURY,  AS  DEFINED  BY  MAGNA  CARTA. 

That  the  trial  by  jury  is  all  that  has  been  claimed  for  it  in 
the  preceding  chapter,  is  proved  both  by  the  history  and  the 
language  of  the  Great  Charter  of  English  Liberties,  to  which 
we  are  to  look  for  a  true  definition  of  the  trial  by  jury,  and 
of  which  the  guaranty  for  that  trial  is  the  vital,  and  most 
memorable,  part. 


section  i . 

The  History  of  Magna  Carta. 

In  order  to  judge  of  the  object  and  meaning  of  that  chapter 
of  Magna  Carta  which  secures  the  trial  by  jury,  it  is  to  be 
borne  in  mind  that,  at  the  time  of  Magna  Carta,  the  king  (with 
exceptions  immaterial  to  this  discussion,  but  which  will  appear 
hereafter)  was,  constitutionally,  the  entire  government;  the 
sole  legislative,  judicial ,  and  executive  power  of  the  nation. 
The  executive  and  judicial  officers  were  merely  his  servants, 
appointed  by  him,  and  removable  at  his  pleasure.  In  addition 
to  this,  “  the  king  himself  often  sat  in  his  court,  which  always 
attended  his  person.  He  there  heard  causes,  and  pronounced 
judgment;  and  though  he  was  assisted  by  the  advice  of  other 
members,  it  is  not  to  be  imagined  that  a  decision  could  be 
obtained  contrary  to  his  inclination  or  opinion.”*  Judges 
were  in  those  days,  and  afterwards,  such  abject  servants  of 
the  king,  that  “  we  find  that  King  Edward  I.  (1272  to  1307) 
fined  and  imprisoned  his  judges,  in  the  same  manner  as  Alfred 
the  Great,  among  the  Saxons,  had  done  before  him,  by  the 
sole  exercise  of  his  authority.”! 


•  1  Hume,  Appendix  2. 


f  Crabbe’s  History  of  the  English  Lav,  236. 


HISTORY  OF  MAGNA  CARTA. 


21 


Parliament,  so  far  as  there  was  a  parliament,  was  a  mere 
council  of  the  king.* *  It  assembled  only  at  the  pleasure  of  the 
king;  sat  only  during  his  pleasure;  and  when  sitting  had  no 
power,  so  far  as  general  legislation  was  concerned,  beyond 
that  of  simply  advising  the  king.  The  only  legislation  to 
which  their  assent  was  constitutionally  necessary,  was  demands 
for  money  and  military  services  for  extraordinary  occasions. 
Even  Magna  Carta  itself  makes  no  provisions  whatever  for 
any  parliaments,  except  when  the  king  should  want  means  to 
carry  on  war,  or  to  meet  some  other  extraordinary  necessity. f 
He  had  no  need  of  parliaments  to  raise  taxes  for  the  ordinary 
purposes  of  government;  for  his  revenues  from  the  rents  of  the 
crown  lands  and  other  sources,  were  ample  for  all  except 
extraordinary  occasions.  Parliaments,  too,  when  assembled, 
consisted  only  of  bishops,  barons,  and  other  great  men  of  the 
kingdom,  unless  the  king  chose  to  invite  others.^  There  was 
no  House  of  Commons  at  that  time,  and  the  people  had  no 
right  to  be  heard,  unless  as  petitioners.^ 


*  Coke  says,  “  The  king  of  England  is  armed  with  divers  councils,  one  whereof  is 
oalled  commune  concilium,  (the  common  council,)  and  that  is  the  court  of  parliament, 
and  so  it  is  legally  called  in  writs  and  judicial  proceedings  commune  concilium  regni 
Angliie,  (the  common  council  of  the  kingdom  of  England.)  And  another  is  called 
magnum  concilium,  (great  council ; )  this  is  sometimes  applied  to  the  upper  house  of 
parliament,  and  sometimes,  out  of  parliament  time,  to  the  peers  of  the  realm,  lords  of 
parliament,  who  are  called  magnum  concilium  regis,  (the  great  council  of  the  king;) 

*  *  Thirdly,  (as  every  man  knoweth,)  the  king  hath  a  privy  council  for  matters  of 

State.  *  *  The  fourth  council  of  the  king  are  his  judges  for  law  matters.” 

1  Coke’s  Institutes,  110  a. 

t  The  Great  Charter  of  Henry  III.,  (1216  and  1225,)  confirmed  by  Edward  I.,  (1297,) 
makes  no  provision  whatever  for,  or  mention  of,  a  parliament,  unless  the  provision, 
(Ch.  37,)  that  “  Escuage,  (a  military  contribution,)  from  henceforth  shall  be  taken  like 
as  it  was  wont  to  be  in  the  time  of  King  Henry  our  grandfather,”  mean  that  a  parlia¬ 
ment  shall  be  summoned  for  that  purpose. 

I  The  Magna  Carta  of  John,  (Ch.  17  and  18,)  defines  those  who  were  entitled  to  be 
summoned  to  parliament,  to  wit,  “  The  Archbishops,  Bishops,  Abbots,  Earls,  and  Great 
Barons  of  the  Realm,  *  *  and  all  others  who  hold  of  us  in  chief.”  Those  who  held 
land  of  the  king  in  chi/f  included  none  below  the  rank  of  knights. 

§  The  parliaments  of  that  time  were,  doubtless,  such  as  Carlyle  describes  them,  when 
he  says,  “  The  parliament  was  at  first  a  most  simple  assemblage,  quite  cognate  to  the 
situation ;  that  Red  William,  or  whoever  had  taken  on  him  the  terrible  task  of  being 
King  of  England,  was  wont  to  invite,  oftenest  about  Christmas  time,  his  subordinate 
Kinglets,  Barons  as  he  called  them,  to  give  him  the  pleasure  of  their  company  for  a 
week  or  two  ;  there,  in  earnest  conference  all  morning,  in  freer  talk  over  Christmas 


22 


TRIAL  BY  JURY. 


Even  when  laws  were  made  at  the  time  of  a  parliament, 
they  were  made  in  the  name  of  the  king  alone.  Sometimes 
it  was  inserted  in  the  laws,  that  they  were  made  with  the 
consent  or  advice  of  the  bishops,  barons,  and  others  assem¬ 
bled  ;  bnt  often  this  was  omitted.  Their  consent  or  advice 
was  evidently  a  matter  of  no  legal  importance  to  the  enact¬ 
ment  or  validity  of  the  laws,  but  only  inserted,  when  inserted 
at  all,  with  a  view  of  obtaining  a  more  willing  submission 
to  them  on  the  part  of  the  people.  The  style  of  enactment 
generally  was,  either  “  The  King  wills  and  commands ,”  or 
some  other  form  significant  of  the  sole  legislative  authority 
of  the  king.  The  king  could  pass  laws  at  any  time  when  it 
pleased  him.  The  presence  of  a  parliament  was  wholly  un¬ 
necessary.  Hume  says,  “  It  is  asserted  by  Sir  Harry  Spelman, 
as  an  undoubted  fact,  that,  during  the  reigns  of  the  Norman 
princes,  every  order  of  the  king,  issued  with  the  consent  of  his 
privy  council,  had  the  full  force  of  law.” *  *  And  other  author¬ 
ities  abundantly  corroborate  this  assertion. f 

The  king  was,  therefore,  constitutionally  the  government; 
and  the  only  legal  limitation  upon  his  power  seems  to  have 
been  simply  the  Common  Law ,  usually  called  “  the  law  of  the 
land,”  which  he  was  bound  by  oath  to  maintain ;  (which  oath 
had  about  the  same  practical  value  as  similar  oaths  have 
always  had.)  This  “law  of  the  land”  seems  not  to  have 
been  regarded  at  all  by  many  of  the  kings,  except  so  far  as 
they  found  it  convenient  to  do  so,  or  were  constrained  to 
observe  it  by  the  fear  of  arousing  resistance.  But  as  all  people 
are  slow  in  making  resistance,  oppression  and  usurpation  often 
reached  a  great  height;  and,  in  the  case  of  John,  they  had 
become  so  intolerable  as  to  enlist  the  nation  almost  universally 
against  him;  and  he  was  reduced  to  the  necessity  of  com¬ 
plying  with  any  terms  the  barons  saw  fit  to  dictate  to  him. 

It  was  under  these  circumstances,  that  the  Great  Charter  of 


cheer  all  evening,  in  some  big  royal  hall  of  Westminster,  Winchester,  or  wherever  it 
might  be,  with  log  fires,  huge  rounds  of  roast  and  boiled,  not  lacking  malmsey  and 
other  generous  liquor,  they  took  counsel  concerning  the  arduous  matters  of  the 
kingdom.” 

*  Hume,  Appendix  2. 

•f  This  point  will  be  more  fully  established  hereafter. 


HISTOKY  OF  MAGNA  CARTA. 


23 


English  Liberties  was  granted.  The  barons  of  England,  sus¬ 
tained  by  the  common  people,  having  their  king  in  their 
power,  compelled  him,  as  the  price  of  his  throne,  to  pledge 
himself  that  he  would  punish  no  freeman  for  a  violation  of 
any  of  his  laws,  unless  with  the  consent  of  the  peers  —  that 
is,  the  equals  —  of  the  accused. 

The  question  here  arises,  Whether  the  barons  and  people 
intended  that  those  peers  (the  jury)  should  be  mere  puppets 
in  the  hands  of  the  king,  exercising  no  opinion  of  their  own 
as  to  the  intrinsic  merits  of  the  accusations  they  should  try,  or 
the  justice  of  the  laws  they  should  be  called  on  to  enforce? 
Whether  those  haughty  and  victorious  barons,  when  they  had 
their  tyrant  king  at  their  feet,  gave  back  to  him  his  throne, 
with  full  power  to  enact  any  tyrannical  laws  he  might  please, 
reserving  only  to  a  jury  (“the  country”)  the  contemptible 
and  servile  privilege  of  ascertaining,  (under  the  dictation  of 
the  king,  or  his  judges,  as  to  the  laws  of  evidence),  the 
simple  fact  whether  those  laws  had  been  transgressed?  Was 
this  the  only  restraint,  Avhich,  when  they  had  all  power  in 
their  hands,  they  placed  upon  the  tyranny  of  a  king,  whose 
oppressions  they  had  risen  in  arms  to  resist?  Was  it  to  obtain 
such  a  charter  as  that,  that  the  whole  nation  had  united,  as  it 
were,  like  one  man,  against  their  king?  Was  it  on  such  a 
charter  that  they  intended  to  rely,  for  all  future  time,  for  the 
security  of  their  liberties?  No.  They  were  engaged  in  no 
such  senseless  work  as  that.  On  the  contrary,  when  they 
required  him  to  renounce  forever  the  power  to  punish  any 
freeman,  unless  by  the  consent  of  his  peers,  they  intended 
those  peers  should  judge  of,  and  try,  the  whole  case  on  its 
merits,  independently  of  all  arbitrary  legislation,  or  judicial 
authority,  on  the  part  of  the  king.  In  this  way  they  took  the 
liberties  of  each  individual  —  and  thus  the  liberties  of  the 
whole  people  —  entirely  out  of  the  hands  of  the  king,  and  out 
of  the  power  of  his  laws,  and  placed  them  in  the  keeping  of 
the  people  themselves.  And  this  it  was  that  made  the  trial 
by  jury  the  palladium  of  their  liberties. 

The  trial  by  jury,  be  it  observed,  was  the  only  real  barrier 
interposed  by  them  against  absolute  despotism.  Could  this 
trial,  then,  have  been  such  an  entire  farce  as  it  necessarily 


24 


TRIAL  BY  JURY. 


must  have  been,  if  the  jury  had  had  no  power  to  judge  of  the 
justice  of  the  laws  the  people  were  required  to  obey?  Did  it 
not  rather  imply  that  the  jury  were  to  judge  independently 
and  fearlessly  as  to  everything  involved  in  the  charge,  and 
especially  as  to  its  intrinsic  justice,  and  thereon  give  their 
decision,  (unbiased  by  any  legislation  of  the  king,)  whether 
the  accused  might  be  punished?  The  reason  of  the  thing,  no 
less  than  the  historical  celebrity  of  the  events,  as  securing  the 
liberties  of  the  people,  and  the  veneration  with  which  the  trial 
by  jury  has  continued  to  be  regarded,  notwithstanding  its 
essence  and  vitality  have  been  almost  entirely  extracted  from 
it  in  practice,  would  settle  the  question,  if  other  evidences  had 
left  the  matter  in  doubt. 

Besides,  if  his  laws  were  to  be  authoritative  with  the  jury, 
why  should  John  indignantly  refuse,  as  at  first  he  did,  to 
grant  the  charter,  (and  finally  grant  it  only  when  brought  to 
the  last  extremity,)  on  the  ground  that  it  deprived  him  of  all 
power,  and  left  him  only  the  name  of  a  king?  He  evidently 
understood  that  the  juries  were  to  veto  his  laws,  and  paralyze 
his  power,  at  discretion,  by  forming  their  own  opinions  as  to 
the  true  character  of  the  offences  they  were  to  try,  and  the 
laws  they  were  to  be  called  on  to  enforce;  and  that  11  the 
king  wills  and  commands  ”  was  to  have  no  weight  with  them 
contrary  to  their  own  judgments  of  what  was  intrinsically 
right.* 

The  barons  and  people  having  obtained  by  the  charter  all 
the  liberties  they  had  demanded  of  the  king,  it  was  further 


*  It  is  plain  that  the-  king  and  all  his  partisans  looked  upon  the  charter  as  utterly 
prostrating  the  king’s  legislative  supremacy  before  the  discretion  of  juries.  When  the 
schedule  of  liberties  demanded  by  the  barons  was  shown  to  him,  (of  which  the  trial  by 
jury  was  the  most  important,  because  it  was  the  only  one  that  protected  all  the  rest,) 
“  the  king,  falling  into  a  violent  passion,  asked,  Why  the  barons  did  not  with  these  ex¬ 
actions  demand  his  kingdom ?  *  *  and  with  a  solemn  oath  protested,  that  he  would  never 
grant  such  liberties  as  would  make  himself  a  slaved’  *  *  But  afterwards,  “  seeing  him¬ 
self  deserted,  and  fearing  they  would  seize  his  castles,  he  sent  the  Earl  of  Pemhroke 
and  other  faithful  messengers  to  them,  to  let  them  know  he  would  grant  them  the  laws 
and  liberties  they  desired.”  *  *  But  after  the  charter  had  been  granted,  “the  king’s 
mercenary  soldiers,  desiring  war  more  than  peace,  were  by  their  leaders  continually 
whispering  in  his  cars,  that  he  was  now  no  longer  king,  but  the  scorn  of  other  princes ;  and 
that  it  was  more  eligible  to  be  no  king,  than  such  a  one  as  he.”  *  *  He  applied  “  to  the 


LANGUAGE  OF  MAGNA  CARTA. 


25 


provided  by  the  charter  itself  that  twenty-five  barons  should 
be  appointed  by  the  barons,  out  of  their  number,  to  keep  special 
vigilance  in  the  kingdom  to  see  that  the  charter  was  observed, 
with  authority  to  make  war  upon  the  king  in  case  of  its  vio¬ 
lation.  The  king  also,  by  the  charter,  so  far  absolved  all 
the  people  of  the  kingdom  from  their  allegiance  to  him,  as  to 
authorize  and  require  them  to  swear  to  obey  the  twenty-five 
barons,  in  case  they  should  make  war  upon  the  king  for  in¬ 
fringement  of  the  charter.  It  was  then  thought  by  the  barons 
and  people,  that  something  substantial  had  been  done  for  the 
security  of  their  liberties. 

This  charter,  in  its  most  essential  features,  and  without  any 
abatement  as  to  the  trial  by  jury,  has  since  been  confirmed 
more  than  thirty  times;  and  the  people  of  England  have 
always  had  a  traditionary  idea  that  it  was  of  some  value  as  a 
guaranty  against  oppression.  Yet  that  idea  has  been  an  entire 
delusion,  unless  the  jury  have  had  the  right  to  judge  of  the 
justice  of  the  laws  they  were  called  on  to  enforce. 


SECTION  II. 

The  Language  of  Magna  Carta. 

The  language  of  the  Great  Charter  establishes  the  same 
point  that  is  established  by  its  history,  viz.,  that  it  is  the  right 
and  duty  of  the  jury  to  judge  of  the  justice  of  the  laws. 


Pope,  that  he  might  by  his  apostolic  authority  make  void  what  the  barons  had  done. 

* *  *  At  Piomc  he  met  with  what  success  he  could  desire,  where  all  the  transactions 
with  the  barons  were  fully  represented  to  the  Pope,  and  the  Charter  of  Liberties  shown 
to  him,  in  writing;  which,  when  he  had  carefully  perused,  he,  with  a  furious  look,  cried 
out,  What  !  Do  the  barons  of  England  endeavor  to  dethrone  a  king,  who  has  taken  upon 
him  the  Holy  Cross,  and  is  under  the  protection  of  the  Apostolic  See  ;  and  would  they  force 
him  to  transfer  the  dominions  of  the  Unman  Church  to  others?  By  St.  Peter,  this  injury  must 
not  pass  unpunished.  Then  debating  the  matter  with  the  cardinals,  he,  by  a  definitive 
sentence,  damned  and  cassatcd  forever  the  Charter  of  Liberties,  and  sent  the  king  a  bull 
containing  that  sentence  at  large.” —  Echard’s  History  of  England,  p.  10G-7. 

These  things  show  that  the  nature  and  effect  of  the  charter  were  well  understood  by 
the  king  and  his  friends;  that  they  all  agree’d  that  he  was  effectually  stripped  of  power. 
Yet  the  legislative  power  had  not  been  taken  from  him ;  but  only  the  power  to  enforce  his  laws, 
unless  juries  should  freely  consent  to  their  enforcement. 

3 


26 


TRIAL  BY  JURY. 


The  chapter  guaranteeing  the  trial  by  jury  is  in  these 
words : 

“  Nullus  liber  homo  capiatur,  vel  imprisonetur,  aut  disseise- 
tur,  ant  utlagetur,  aut  exuletur,  aut  aliquo  mode  destruatnr; 
nec  super  eum  ibimus,  nec  super  eum  mittemus,  nisi  per  legale 
judicium  pariuin  suorum,  vel  per  legem  terrEE.”* 

The  corresponding  chapter  in  the  Great  Charter,  granted 
by  Henry  III.,  (1225,)  and  confirmed  by  Edward  I.,  (1297,) 
(which  charter  is  now  considered  the  basis  of  the  English 
laws  and  constitution,)  is  in  nearly  the  same  words,  as  follows  : 

“Nullus  liber  homo  capiatur,  vel  imprisonetur,  aut  disseise- 
tur  de  libero  tenemento,  vel  libertatibus,  vel  liberis  consuetu- 
dinibus  suis,  aut  utlagetur,  aut  exuletur,  aut  aliquo  modo  de- 
struatur,  nec  super  eum  ibimus,  nec  super  eum  mittemus,  nisi 
per  legale  judicium  parium  suorum,  vel  per  legem  terrse.” 

The  most  common  translation  of  these  words,  at  the  present 
day,  is  as  follows  : 

“No  freeman  shall  be  arrested,  or  imprisoned,  or  deprived 
of  his  freehold,  or  his  liberties,  or  free  customs,  or  outlawed, 
or  exiled,  or  in  any  manner  destroyed,  nor  will  we  ( the  king ) 
pass  upon  him ,  nor  condemn  him ,  unless  by  the  judgment  of 
his  peers,  or  the  law  of  the  land.” 

“  Nec  super  eum  ibimus,  nec  super  eum  mittemus.'" 

There  has  been  much  confusion  and  doubt  as  to  the  true 
meaning  of  the  words,  “  nec  super  eum,  ibimus ,  nee  super  eum 
mittemus."  The  more  common  rendering  has  been,  “  nor  will 
iv e  pass  upon  him,  nor  condemn  him."  But  some  have  trans¬ 
lated  them  to  mean,  “  nor  will  ive  pass  upon  him,  nor  commit 
him  to  prison."  Coke  gives  still  a  different  rendering,  to  the 
effect  that  “No  man  shall  be  condemned  at  the  king’s  suit, 
either  before  the  king  in  his  bench,  nor  before  any  other  com¬ 
missioner  or  judge  whatsoever.”  f 

But  all  these  translations  are  clearly  erroneous.  In  the  first 


*  The  laws  were,  at  that  time,  all  written  in  Latin. 

t“  No  man  shall  be  condemned  at  the  king’s  suit,  either  before  the  king  in  his  bench,, 
where  pleas  are  coram  regc ,  (before  the  king,)  (and  so  are  the  words  nec  super  eum  ibimus, 
to  be  understood,)  nor  before  any  other  commissioner  or  judge  whatsoever,  and  so  are 
the  words  nec  super  eum  mittemus,  to  be  understood,  but  by  the  judgment  of  his  peers, 
that  is,  equals,  or  according  to  the  law  of  the  land.” —  2  Coke’s  Inst ^  46. 


LANGUAGE  OF  MAGNA  CARTA. 


27 


place,  “  nor  will  we  pass  upon  him,"  —  meaning  thereby  to 
decide  upon  his  guilt  or  innocence  judicially  —  is  not  a  correct 
rendering  of  the  words,  “  nee  super  eum  ibimus."  There  is 
nothing  whatever,  in  these  latter  words,  that  indicates  judicial 
action  or  opinion  at  all.  The  words,  in  their  common  signifi¬ 
cation,  describe  physical  action  alone.  And  the  true  transla¬ 
tion  of  them,  as  will  hereafter  be  seen,  is,  '■'•nor  will  we  proceed 
against  him,"  executively. 

In  the  second  place,  the  rendering,  11  nor  will  we  condemn 
him"  bears  little  or  no  analogy  to  any  common,  or  even 
uncommon,  signification  of  the  words  “  nec  super  eum  milte- 
mus."  There  is  nothing  in  these  latter  words  that  indicates 
judicial  action  or  decision.  Their  common  signification,  like 
that  of  the  words  nec  super  eum  ibimus,  describes  physical 
action  alone.  “  Nor  will  we  send  upon  ( or  against )  him," 
would  be  the  most  obvious  translation,  and,  as  we  shall  here¬ 
after  see,  such  is  the  true  translation. 

But  although  these  words  describe  physical  action,  on  the 
part  of  the  king,  as  distinguished  from  judicial,  they  never¬ 
theless  do  not  mean,  as  one  of  the  translations  has  it,  “  nor 
will  we  commit  him  to  prison;"  for  that  would  be  a  mere 
repetition  of  what  had  been  already  declared  by  the  words 
“  nec  imprisonetur."  Besides,  there  is  nothing  about  prisons 
in  the  words  “  nec  super  eum  mittemus nothing  about 
sending  him  anywhere;  but  only  about  sending  (something 
or  somebody)  upon  him,  or  against  him  —  that  is,  executively. 

Coke’s  rendering  is,  if  possible,  the  most  absurd  and  gratu¬ 
itous  of  all.  What  is  there  in  the  words,  “  nec  super  eum 
mittem.us"  that  can  be  made  to  mean  “ nor  shall  he  be  con¬ 
demned  before  any  other  commissioner  or  judge  whatsoever  ?  " 
Clearly  there  is  nothing.  The  whole  rendering  is  a  sheer 
fabrication.  And  the  whole  object  of  it  is  to  give  color  for  the 
exercise  of  a  judicial  power,  by  the  king,  or  his  judges,  which 
is  nowhere  given  them. 

Neither  the  words,  “  nec  super  eum  ibimus,  nec  super  eum 
mittemus,"  nor  any  other  words  in  the  whole  chapter,  author¬ 
ize,  provide  for,  describe,  or  suggest,  any  judicial  action  what¬ 
ever,  on  the  part  either  of  the  king,  or  of  his  judges,  or  of 
anybody,  except  the  peers,  or  jury.  There  is  nothing  about 


28 


TRIAL  BY  JURY. 


the  king’s  judges  at  all.  And  there  is  nothing  whatever, 
in  the  whole  chapter,  so  far  as  relates  to  the  action  of  the 
king,  that  describes  or  suggests  anything  but  executive  action.* 

But  that  all  these  translations  are  certainly  erroneous,  is 
proved  by  a  temporary  charter,  granted  by  John  a  short  time 
previous  to  the  Great  Charter,  for  the  purpose  of  giving  an 
opportunity  for  conference,  arbitration,  and  reconciliation 
between  him  and  his  barons.  It  was  to  have  force  until  the 
matters  in  controversy  between  them  could  be  submitted  to 
the  Pope,  and  to  other  persons  to  be  chosen,  some  by  the  king, 
and  some  by  the  barons.  The  words  of  the  charter  are  as 
follows : 

“Sciatis  nos  concessisse  baronibus  nostris  qui  contra  nos 
sunt  quod  nec  eos  nec  homines  suos  capiemus,  nec  disseisie- 
mus  nec  super  eos  per  vim  vel  per  arm, a  ibimus  nisi  per  legem 
regni  nostri  vel  per  judicium  parium  suorum  in  curia  nostra 
donee  consideratio  facta  fuerit,”  &c.,  &c. 

That  is,  “Know  that  we  have  granted  to  our  barons  who 
are  opposed  to  us,  that  we  will  neither  arrest  them  nor  their 
men,  nor  disseize  them,  nor  will  we  proceed  against  them  by 
force  or  by  arms,  unless  by  the  law  of  our  kingdom,  or  by  the 
judgment  of  their  peers  in  our  court,  until  consideration  shall 
be  had,”  &, c.,  &c. 

A  copy  of  this  charter  is  given  in  a  note  in  Blackstone’s 
Introduction  to  the  Charters.! 

Mr.  Christian  speaks  of  this  charter  as  settling  the  true 
meaning  of  the  corresponding  clause  of  Magna  Carta,  on  the 
principle  that  laws  and  charters  on  the  same  subject  are  to  be 
construed  with  reference  to  each  other.  See  3  Christian’’ s 
Blackstone,  41,  note. 


*  Perhaps  the  assertion  in  the  text  should  be  made  with  this  qualification  —  that  the 
words  “  per  legem  ten-*,”  (according  to  the  law  of  the  land,)  and  the  words  “ per  legale 
judicium  parium  suorum ,”  (aooording  to  the  legal  judgment  of  his  peers,)  imply  that 
the  king,  before  proceeding  to  any  executive  action,  will  take  notice  of  “  the  law  of  the 
land,”  and  of  the  legality  of  the  judgment  of  the  peers,  and  will  execute  upon  the 
prisoner  nothing  except  what  the  law  of  the  land  authorizes,  and  no  judgments  of  the 
peers,  except  legal  ones.  With  this  qualification,  the  assertion  in  the  text  is  strictly 
correct  —  that  there  is  nothing  in  the  whole  chapter  that  grants  to  the  king,  or  his 
judges,  any  judicial  power  at  all.  The  chapter  only  describes  and  limits  his  ex ccutivt 
power. 

t  See  Blackstone’s  Law  Tracts,  page  294,  Oxford  Edition. 


LANGUAGE  OF  MAGNA  CARTA. 


29 


The  true  meaning  of  the  words,  nec  super  eum  ibimus,  nec 
*  super  eum i  mitlemus,  is  also  proved  by  the  “  Articles  of  the 
Great  Charter  of  Liberties ,”  demanded  of  the  king  by  the 
barons,  and  agreed  to  by  the  king,  under  seal,  a  few  days 
before  the  date  of  the  Charter,  and  from  which  the  Charter 
was  framed.*  Here  the  words  used  are  these: 

“  Ne  corpus  liberi  hominis  capiatur  nec  imprisonetur  nec 
disseisetur  nec  utlagetur  nec  exnletur  nec  aliquo  rnodo  des- 
truatur  nec  rex  eat  vel  mittat  super  eum  vi  nisi  per  judicium 
pariutn  suorum  vel  per  legem  terrse.” 

That  is,  “The  body  of  a  freeman  shall  not  be  arrested,  nor 
imprisoned,  nor  disseized,  nor  outlawed,  nor  exiled,  nor  in  any 
manner  destroyed,  nor  shall  the  kins:  proceed  or  send  [ any 
one)  against  him  with  force,  unless  by  the  judgment  of  his 
peers,  or  the  law  of  the  land.” 

The  true  translation  of  the  words  nec  super  eum  ibimus,  nec 
super  eum  mitlemus ,  in  Magna  Carta,  is  thus  made  certain,  as 
follows,  “  nor  will  we  [the  king )  proceed  a  gainst  him ,  nor  send 
( any  one)  against  him,  with  force  or  arms.”| 

It  is  evident  that  the  difference  between  the  true  and  false 
translations  of  the  words,  nec  super  eum  ibimus ,  nec  super  eum 
mitlemus ,  is  of  the  highest  legal  importance,  inasmuch  as  the 
true  translation,  nor  will  we  [the  king)  proceed  against  him , 
nor  send  [any  one)  against  him  by  force  or  arms ,  represents 
the  king  only  in  an  executive  character,  carrying  the  judgment 
of  the  peers  and  11  the  law  of  the  land  ”  into  execution  ;  where¬ 
as  the  false  translation,  nor  will  we  pass  upon  him,  nor  condemn 
him ,  gives  color  for  the  exercise  of  a  judicial  power,  on  the 


*  These  Articles  of  the  Charter  are  given  in  Blackstone’s  collection  of  Charters,  and 
are  also  printed  with  the  Statutes  of  the  Realm.  Also  in  Wilkins’  Laws  of  the  Anglo- 
Saxons,  p.  356. 

f  Lingard  says,  “  The  words,  ‘  We  will  not  destroy  him ,  nor  will  we  go  upon  him ,  nor 
will  we  said  upon  him,'’  have  been  very  differently  expounded  by  different  legal  author¬ 
ities.  Their  real  meaning  may  be  learned  from  John  himself,  who  the  next  year 
promised  by  his  letters  patent  .  .  .  nee  super  eos  per  vim  vel  per  arma  ibimus,  nisi  per 
legem  regni  nostri,  vel  per  judicium  parium  suorum  in  euria  nostra,  (nor  will  we  go 
upon  them  by  force  or  by  arms ,  unless  by  the  law  of  our  kingdom,  or  the  judgment  of 
their  peers  in  our  court.)  Pat.  16  Johan,  apud  Drad.  11,  app.  no.  124.  He  had  hith¬ 
erto  been  in  the  habit  of  going  with  an  armed  force,  or  sending  an  armed  force  on  the 
lands,  and  against  the  castles,  of  all  whom  he  knew  or  suspected  to  be  his  secret 
enemies,  without  observing  any  form  of  law.”  —  3  Lingard,  47  note. 

3* 


30 


TRIAL  BY  JURY. 


part  of  the  king,  to  which  the  king  had  no  right,  but  which, 
according  to  the  true  translation,  belongs  wholly  to  the  jury. 

“  Per  legale  judicium  pari.um  suorum." 

The  foregoing  interpretation  is  corroborated,  (if  it  were  not 
already  too  plain  to  be  susceptible  of  corroboration,)  by  the 
true  interpretation  of  the  phrase  “per  legale  judicium  'par him 
suorum.” 

In  giving  this  interpretation,  I  leave  out,  for  the  present,  the 
word  legale ,  which  will  be  defined  afterwards. 

The  true  meaning  of  the  phrase,  per  judicium  parium 
suorttm,  is,  according  to  the  sentence  of  his  peers.  The  word 
judicium,  judgment,  has  a  technical  meaning  in  the  law,  sig¬ 
nifying  the  decree  rendered  in  the  decision  of  a  cause.  In 
civil  suits  this  decision  is  called  a  judgment ;  in  chancery 
proceedings  it  is  called  a  decree ;  in  criminal  actions  it  is  called 
a  sentence ,  or  judgment,  indifferently.  Thus,  in  a  criminal 
suit,  “a  motion  in  arrest  of  judgment ,”  means  a  motion  in 
arrest  of  sentence .* 

In  cases  of  sentence,  therefore,  in  criminal  suits,  the  words 
sentence  and  judgment  are  synonymous  terms.  They  are,  to 
this  da}r,  commonly  used  in  law  books  as  synonymous  terms. 
And  the  phrase  per  judicium  parium  suorum,  therefore,  im¬ 
plies  that  ,the  jury  are  to  fix  the  sentence. 

The  word  per  means  according  to.  Otherwise  there  is  no 
sense  in  the  phrase  per  judicium  parium  suorum.  There 


*  “Judgment,  judicium.  *  *  The  sentence  of  the  law,  pronounced  by  the  court, 

upon  the  matter  contained  in  the  record.”  —  3  Blackstone,  395.  Jacob's  Law  Dictionary. 
Tomlin's  do. 

“  Judgment  is  the  decision  or  sentence  of  the  law,  given  by  a  court  of  justice  or  other 
competent  tribunal,  as  the  result  of  the  proceedings  instituted  therein,  for  the  redress 
of  an  injury.”  —  Bouvier’s  Law  Diet. 

“  Judgment,  judicium.  *  *  Sentence  of  a  judge  against  a  criminal.  *  *  De¬ 

termination,  decision  in  general.”  —  Bailey's  Diet. 

“  Judgment.  *  *  In  a  legal  sense,  a  sentence  or  decision  pronounced  by  authority 

of  a  king,  or  other  power,  either  by  their  own  mouth,  or  by  that  of  their  judges  and 
officers,  whom  they  appoint  to  administer  justice  in  their  stead.” —  Chambers’  Diet. 

“  Judgment.  *  *  In  law,  the  sentence  or  doom  pronounced  in  any  case,  civil  or 

criminal,  by  the  judge  or  court  by  which  it  is  tried.” —  Webster’s  Diet. 

Sometimes  the  punishment  itself  is  called  judicium,  judgment  ;  or,  rather,  it  was  at 
the  time  of  Magna  Carta.  Dor  example,  in  a  statute  passed  fifty-one  years  after 


LANGUAGE  OF  MAGNA  CARTA. 


31 


would  be  no  sense  in  saying  that  a  king  might  imprison,  dis¬ 
seize,  outlaw,  exile,  or  otherwise  punish  a  man,  or  proceed 
against  him,  or  send  any  one  against  him,  by  force  or  arms ,  by 
a  judgment  of  his  peers;  but  there  is  sense  in  saying  that  the 
king  may  imprison,  disseize,  and  punish  a  man,  or  proceed 
against  him,  or  send  any  one  against  him,  by  force  or  arms, 
according  to  a  judgment,  or  sentence ,  of  his  peers  ;  because  in 
that  case  the  king  would  be  merely  carrying  the  sentence  or 
judgment  of  the  peers  into  execution. 

The  word  per,  in  the  phrase  “ per  judicium  parium  suo- 
rum,”  of  course  means  precisely  what  it  does  in  the  next 
phrase,  11  per  legem  terras;”  where  it  obviously  means 
according  to,  and  not  by,  as  it  is  usually  translated.  There 
would  be  no  sense  in  saying  that  the  king  might  proceed 
against  a  man  by  force  or  arms,  by  the  law  of  the  land  ;  but 
there  is  sense  in  saying  that  he  may  proceed  against  him,  by 
force  or  arms,  according  to  the  law  of  the  land;  because  the 
king  would  then  be  acting  only  as  an  executive  officer,  carry¬ 
ing  the  law  of  the  land  into  execution.  Indeed,  the  true 
meaning  of  the  word  by,  as  used  in  similar  cases  now,  always 
is  according  to ;  as,  for  example,  when  we  say  a  thing  was 
done  by  the  government,  or  by  the  executive,  by  law,  we 
mean  only  that  it  was  done  by  them  according  to  law  ;  that 
is,  that  they  merely  executed  the  law. 

Or,  if  we  say  that  the  word  by  signifies  by  authority  of ,  the 
result  will  still  be  the  same;  for  nothing  can  be  done  by  au¬ 
thority  of  law,  except  what  the  law  itself  authorizes  or  directs 

Magna  Carta,  it  was  said  that  a  baker,  for  default  in  the  weight  of  his  bread,  “  debeat 
amerciari  vel  subire  judicium,  pillorie;”  that  is,  ought  to  be  amerced,  or  suffer  the  pun¬ 
ishment,  or  judgment,  of  the  pillory.  Also  that  a  brewer,  for  “  selling  ale  contrary  to 
the  assize,”  “debeat  amerciari,  vel  pati  judicium  tumbrelli”;  that  is,  ought  to  be 
amerced,  or  suffer  the  punishment,  or  judgment,  of  the  tumbrel.  —  51  Henry  3,  St.  6. 
(1266.) 

Also  the  “ Statutes  of  uncertain^  date”  (but  supposed  to  be  prior  to  Edward  III.,  or 
1326,)  provide,  in  chapters  6,  7,  and  10,  for  “judgment  of  the  pillory.” —  See  1  Ruff- 
head’s  Statutes,  187,  188.  1  Statutes  qf  the  Realm,  203. 

Blackstone,  in  his  chapter  “  Of  Judgment,  and  its  Consequences,”  says, 

“Judgment  (unless  any  matter  be  offered  in  arrest  thereof)  follows  upon  conviction; 
being  the  pronouncing  of  that  punishment  which  is  expressly  ordained  by  law.”  — 
Blackstone' s  Analysis  of  the  Laws  of  England,  Book  4,  Ch.  29,  Sec.  1.  Blackstone’ s 
Law  Tracts,  126. 

Coke  says,  “ Judicium  .  .  the  judgment  is  the  guide  and  direction  of  the  execution.” 
3  Inst.  210. 


32 


TRIAL  BY  JURY. 


to  be  done;  that  is,  nothing  can  be  done  by  authority  of  law, 
except  simply  to  carry  the  law  itself  into  execution.  So  nothing 
could  be  done  by  authority  of  the  sentence  of  the  peers,  or  by 
authority  of  “  the  law  of  the  land,”  except  what  the  sentence 
of  the  peers,  or  the  law  of  the  land,  themselves  authorized  or 
directed  to  be  done;  nothing,  in  short,  but  to  carry  the  sen¬ 
tence  of  the  peers,  or  the  law  of  the  land,  themselves  into 
execution. 

Doing  a  thing  by  law,  or  according  to  law,  is  only  carrying 
the  law  into  execution.  And  punishing  a  man  by,  or  according 
to,  the  sentence  or  judgment  of  his  peers,  is  only,  carrying  that 
sentence  or  judgment  into  execution. 

If  these  reasons  could  leave  any  doubt  that  the  wordier  is 
to  be  translated  according  to,  that  doubt  would  be  removed 
by  the  terms  of  an  antecedent  guaranty  for  the  trial  by  jury, 
granted  by  the  Emperor  Conrad,  of  Germany,*  two  hundred 
years  before  Magna  Carta.  Blackstone  cites  it  as  follows :  — 
(3  Blackstone,  350.) 

“Nemo  beneficium  suum  perdat,  nisi  secundum  consuetu- 
dinem  antecessorum  nostrorum,  et  judicium  parium  suorum.” 
That  is,  No  one  shall  lose  his  estate,!  unless  according  to 
(“secundum”)  the  custom  (or  law)  of  our  ancestors,  and 
(according  to)  the  sentence  (or  judgment)  of  his  peers. 

The  evidence  is  therefore  conclusive  that  the  phrase  per  ju¬ 
dicium  parium  suorum  means  according  to  the  sentence  of  his 
peers  ;  thus  implying  that  the  jury,  and  not  the  government, 
are  to  fix  the  sentence. 

If  any  additional  proof  were  wanted  that  juries  were  to  fix 
the  sentence,  it  would  be  found  in  the  following  provisions  of 
Magna  Carta,  viz. : 

“A  freeman  shall  not  be  amerced  for  a  small  crime,  (delicto,) 
but  according  to  the  degree  of  the  crime ;  and  for  a  great  crime 
in  proportion  to  the  magnitude  of  it,  saving  to  him  his  contene- 


*  This  precedent  from  Germany  is  good  authority,  because  the  trial  by  jury  was  in 
use,  in  the  northern  nations  of  Europe  generally,  long  before  Magna  Carta,  and  probably 
from  time  immemorial  ;  and  the  Saxons  and  Normans  were  familiar  with  it  before 
they  settled  in  England. 

t  Beneficium  was  the  legal  name  of  an  estate  held  by  a  feudal  tenure.  .See  Spel- 
tnan’s  Glossary. 


LANGUAGE  OF  MAGNA  CARTA. 


33 


ment  ;* * * §  and  after  the  same  manner  a  merchant,  saving  to 
him  his  merchandise.  And  a  villein  shall  be  amerced  after 
the  same  manner,  saving  to  him  his  waynage.f  if  he  fall  under 
onr  mercy;  and  none  of  the  aforesaid  amercements  shall  he  im¬ 
posed ( or  assessed,  ponalvrj)  but  by  the  oath,  of  honest  men  of 
the  neighborhood..  Earls  and  Barons  shall  not  be  amerced  but 
by  their  peers,  and  according  to  the  degree  of  their  crime.”  J 

Pecuniary  punishments  were  the  most  common  punish¬ 
ments  at  that  day,  and  the  foregoing  provisions  of  Magna 
Carta  show  that  the  amount  of  those  punishments  was  to  be 
fixed  by  the  jury.  • 

Fines  went  to  the  king,  and  were  a  source  of  revenue;  and 
if  the  amounts  of  the  fines  had  been  left  to  be  fixed  by  the 
king,  he  would  have  had  a  pecuniary  temptation  to  impose 
unreasonable  and  oppressive  ones.  So,  also,  in  regard  to  other 
punishments  than  fines.  If  it  were  left  to  the  king  to  fix  the 
punishment,  he  might  often  have  motives  to  inflict  cruel  and 
oppressive  ones.  As  it  was  the  object  of  the  trial  by  jury  to 
protect  the  people  against  all  possible  oppression  from  the  king, 
it  was  necessary  that  the  jury,  and  not  the  king,  should  fix 
the  punishments. § 

“  Legale." 

The  word  11  legale  f  in  the  phrase  11  per  legale  judicium 


*  Contenement  of  a  freeman  was  the  means  of  living  in  the  condition  of  a  freeman. 

t  Waynage  was  a  villein’s  plough-tackle  and  carts. 

t  Tomlin  says,  “  The  ancient  practice  was,  when  any  such  fine  was  imposed,  to  inquire 
*>y  a  jury  quantum  inde  regi  dare  valeat  per  annum,  salva  sustentatione  sua  el  uxoris  it  libe- 
rorum  suorum,  (how  much  is  he  able  to  give  to  the  king  per  annum,  saving  his  own 
maintenance,  and  that  of  his  wife  and  children).  And  since  tho  disuse  of  such  inquest, 
it  is  never  usual  to  assess  a  larger  fine  than  a  man  is  able  to  pay,  without  touching  the 
implements  of  his  livelihood  ;  but  to  inflict  corporal  punishment,  or  a  limited  imprison¬ 
ment,  instead  of  such  a  fine  as  might  amount  to  imprisonment  for  life.  And  this  is  the 
reason  why  fines  in  the  king’s  courts  are  frequently  denominated  ransoms,  because  the 
penalty  must  otherwise  fall  upon  a  man’s  person,  unless  it  be  redeemed  or  ransomed  by 
a  pecuniary  fine.” —  Tomlin’s  Law  Diet.,  word  Fine. 

§  Because  juries  were  to  fix  the  sentence,  it  must  not  be  supposed  that  the  king  was 
obliged  to  carry  the  sentence  into  execution  ;  but  only  that  he  could  not  go  beyond  the  sen¬ 
tence.  He  might  pardon,  or  he  might  acquit  on  grounds  of  law,  notwithstanding  the 
sentence  ;  but  he  could  not  punish  beyond  the  extent  of  the  sentence.  Magna  Carta 
does  not  prescribe  that  the  king  shall  punish  according  to  the  sentence  of  the  peers  ; 
but  only  that  he  shall  not  punish  “  unless  according  to  ”  that  sentence.  He  may  acquit 
or  pardon,  notwithstanding  their  sentence  or  judgment  ;  but  he  cannot  punish,  except 
according  to  their  judgment. 


34 


TRIAL  BY  JURY. 


parium  suorum ,”  doubtless  means  two  things.  1.  That  the 
sentence  must  be  given  in  a  legal  manner;  that  is,  by  the  legal 
number  of  jurors,  legally  empanelled  and  sworn  to  try  the 
cause;  and  that  they  give  their  judgment  or  sentence  after  a 
legal  trial,  both  in  form  and  substance,  has  been  had.  2.  That 
the  sentence  shall  be  for  a  legal  cause  or  offence.  If,  there¬ 
fore,  a  jury  should  convict  and  sentence  a  man,  either  without 
giving  him  a  legal  trial,  or  for  an  act  that  was  not  really  and 
legally  criminal,  the  sentence  itself  would  not  be  legal;  and 
consequently  this  clause  forbids  the  king  to  carry  such  a  sen¬ 
tence  into  execution ;  for  the  clause  guarantees  that  he  will 
execute  no  judgment  or  sentence,  except  it  be  legale  judicium, 
a  legal  sentence.  Whether  a  sentence  be  a  legal  one,  would 
have  to  be  ascertained  by  the  king  or  his  judges,  on  appeal,  or 
might  be  judged  of  informally  by  the  king  himself. 

The  word  11 legale ”  clearly  did  not  mean  that  the  judicium 
parium  suorum  (judgment  of  his  peers)  should  be  a  sentence 
which  any  law  (of  the  king)  should  require  the  peers  to  pro¬ 
nounce;  for  in  that  case  the  sentence  would  not  be  the  sentence 
of  the  peers,  but  only  the  sentence  of  the  law,  (that  is,  of  the 
king) ;  and  the  peers  would  be  only  a  mouthpiece  of  the  law, 
(that  is,  of  the  king,)  in  uttering  it. 

“  Per  legem  terrce.” 

One  other  phrase  remains  to  be  explained,  viz.,  “ per  legem 
terrce  ,”  “  by  the  law  of  the  land.” 

All  writers  agree  that  this  means  the  common  law.  Thus, 
Sir  Matthew  Hale  says : 

“  The  common  law  is  sometimes  called,  by  way  of  eminence, 
lex  terrce ,  as  in  the  statute  of  Magna  Carta ,  chap.  29,  where 
certainly  the  common  law  is  principally  intended  by  those 
words,  aut  per  legem  terrce-,  as  appears  by  the  exposition 
thereof  in  several  subsequent  statutes;  and  particularly  in  the 
statute  of  28  Edward  III.,  chap.  3,  which  is  but  an  exposition 
and  explanation  of  that  statute.  Sometimes  it  is  called  lex 
Anglia i,  as  in  the  statute  of  Merton,  cap.  9,  “  Nofumus  leges 
Anglice  mutari ,”  &c.,  (We  will  that  the  laws  of  England  be 
not  changed).  Sometimes  it  is  called  lex  et  consuetude  regni 
(the  law  and  custom  of  the  kingdom);  as  in  all  commissions 
of  oyer  and  terminer;  and  in  the  statutes  of  18  Edward  I., 
cap.  — ,  and  de  quo  warranto ,  and  divers  others.  But  most 


LANGUAGE  OF  MAGNA  CARTA. 


35 


commonly  it  is  called  the  Common  Law,  or  the  Common  Law 
of  England;  as  in  the  statute  Articuli  super  Chartas,  cap.  15, 
in  the  statute  25  Edward  III.,  cap.  5,  (4,)  and  infinite  more 
records  and  statutes.”  —  1  Hale's  History  of  the  Common 
Law ,  128. 

This  common  law,  or  “law  of  the  land,”  the  king  was 
sv'orn  to  maintain.  This  fact  is  recognized  by  a  statute  made 
at  Westminster,  in  1346,  by  Edward  III.,  which  commences 
in  this  manner: 

“  Edward,  by  the  Grace  of  God,  &c.,  &c.,  to  the  Sheriff  of 
Stafford,  Greeting:  Because  that  by  divers  complaints  made 
to  us,  we  have  perceived  that  the  law  of  the  land ,  which  we  by 
oath  are  bound  to  maintain ,”  See.  —  St.  20  Edward  III. 

The  foregoing  authorities  are  cited  to  show  to  the  unprofes¬ 
sional  reader, what  is  well  known  to  the  profession,  that  legem 
terra:,  the  law  of  the  land ,  mentioned  in  Magna  Carta,  was  the 
•  common,  ancient,  fundamental  law  of  the  land,  which  the 
kings  were  bound  by  oath  to  observe;  and  that  it  did  not  include 
any  statutes  or  laws  enacted  by  the  king  him, self  ,  the  legislative 
pov'er  of  the  nation. 

If  the  term  legem  terra:  had  included  laws  enacted  by  the 
king  himself,  the  whole  chapter  of  Magna  Carta,  now  under 
discussion,  would  have  amounted  to  nothing  as  a  protection  to 
liberty ;  because  it  would  have  imposed  no  restraint  whatever 
upon  the  power  of  the  king.  The  king  could  make  laws  at 
any  time,  and  such  ones  as  he  pleased.  He  could,  therefore, 
have  done  anything  he  pleased,  by  the  law  of  the  land ,  as  well 
as  in  any  other  way,  if  his  own  laws  had  been  “  the  law  of  the 
land.”  If  his  own  laws  had  been  “  the  law  of  the  land,” 
within  the  meaning  of  that  term  as  used  in  Magna  Carta,  this 
chapter  of  Magna  Carta  would  have  been  sheer  nonsense,  in¬ 
asmuch  as  the  whole  purport  of  it  would  have  been  simply 
that  “  no  man  shall  be  arrested,  imprisoned,  or  deprived  of  his 
freehold,  or  his  liberties,  or  free  customs,  or  outlawed,  or 
exiled,  or  in  any  manner  destroyed  (by  the  king);  nor  shall 
the  king  proceed  against  him,  nor  send  any  one  against  him 
with  force  and  arms,  unless  by  the  judgment  of  his  peers,  or 
unless  the  king  shall  please  to  do  so.” 

This  chapter  of  Magna  Carta  would,  therefore,  have  imposed 
not  the  slightest  restraint  upon  the  power  of  the  king,  or 


3G 


TRIAL  BY  JURY. 


afforded  the  slightest  protection  to  the  liberties  of  the  people, 
if  the  laws  of  the  king  had  been  embraced  in  the  term  legem 
terra.  But  if  legem  terra  was  the  common  law,  which  the 
king  was  sworn  to  maintain,  then  a  real  restriction  was  laid 
upon  his  power,  and  a  real  guaranty  given  to  the  people  for 
their  liberties. 

Such,  then,  being  the  meaning  of  legem  terra ,  the  fact  is 
established  that  Magna  Carta  took  an  accused  person  entirely 
out  of  the  hands  of  the  legislative  power,  that  is,  of  the  king; 
and  placed  him  in  the  power  and  under  the  protection  of  his 
peers,  and  the  common  law  alone  ;  that,  in  short,  Magna  Carta 
suffered  no  man  to  be  punished  for  violating  any  enactment  of 
the  legislative  power,  unless  the  peers  or  equals  of  the  accused 
freely  consented  to  it,  or  the  common  law  authorized  it;  that 
the  legislative  power,  of  itself  was  wholly  incompetent  to 
require  the  conviction  or  punishment  of  a  man  for  any  offence 
whatever. 

Whether  Magna  Carta  allowed  of  any  other  tidal  than  by 
jury. 

The  question  here  arises,  whether  u  legem  terra  ”  did  not 
allow  of  some  other  mode  of  trial  than  that  by  jury. 

The  answer  is,  that,  at  the  time  of  Magna  Carta,  it  is  not 
probable,  (for  the  reasons  given  in  the  note,)  that  legem,  terra 
authorized,  in  criminal  cases,  any  other  trial  than  the  trial  by 
jury;  but,  if  it  did,  it  certainly  authorized  none  but  the  trial 
by  battle,  the  trial  by  ordeal,  and  the  trial  by  compurgators. 
These  were  the  only  modes  of  trial,  except  by  jury,  that  had 
been  known  in  England,  in  criminal  cases,  for  some  centuries 
previous  to  Magna  Carta.  All  of  them  had  become  nearly 
extinct  at  the  time  of  Magna  Carta,  and  it  is  not  probable  that 
they  were  included  in  “  legem  terraf  as  that  term  is  used  in 
that  instrument.  But  if  they  were  included  in  it,  they  have 
now  been  long  obsolete,  and  were  such  as  neither  this  nor  any 
future  age  will  ever  return  to.*  For  all  practical  purposes  of 


*  The  trial  by  battle  was  one  in  which  the  accused  challenged  his  accuser  to  single 
combat,  and  staked  the  question  of  his  guilt  or  innocence  on  the  result  of  the  duel. 
This  trial  was  introduced  into  England  by  the  Normans,  within  one  hundred  and  fifty 
years  before  Magna  Carta.  It  was  not  very  often  resorted  to  even  by  the  Normans 


LANGUAGE  OF  MAGNA  CARTA. 


37 


the  present  day,  therefore,  it  may  be  asserted  that  Magna 
Carta  allows  no  trial  whatever  but  trial  by  jury. 

'Whether  Magna  Carta  allowed  sentence  to  be  fixed  otherwise 
than  by  the  jury. 

Still  another  question  arises  on  the  words  legem  terra},  viz., 
whether,  in  cases  where  the  question  of  guilt  was  determined 
by  the  jury,  the  amount  of  punishment  may  not  have  been 
fixed  by  legem  terree,  the  Common  Law,  instead  of  its  being 
fixed  by  the  jury. 

I  think  we  have  no  evidence  whatever  that,  at  the  time  of 
Magna  Carta,  or  indeed  at  any  other  time,  lex  terree ,  the  com- 


themselves;  probably  never  by  the  Anglo-Saxons,  unless  in  their  controversies  with  the 
Normans.  It  was  strongly  discouraged  by  some  of  the  Norman  princes,  particularly 
by  Henry  II.,  by  whom  the  trial  by  jury  was  especially  favored.  It  is  probable  that 
the  trial  by  battle,  so  far  as  it  prevailed  at  all  in  England,  was  rather  tolerated  as  a 
matter  of  chivalry,  than  authorized  as  a  matter  of  law.  At  any  rate,  it  is  not  likely 
that  it  was  included  in  the  “  legem  terra  ”  of  Magna  Carta,  although  such  duels  have 
occasionally  occurred  since  that  time,  and  have,  by  some,  been  supposed  to  be  lawful. 
I  apprehend  that  nothing  can  be  properly  said  to  bo  a  part  of  lex  terra,  unless  it  can 
be  shown  either  to  have  been  of  Saxon  origin,  or  to  have  been  recognized  by  Magna 
Carta. 

The  trial  by  ordeal  was  of  various  kinds.  In  one  ordeal  the  accused  was  required  to 
take  hot  iron  in  his  hand;  in  another  to  walk  blindfold  among  red-hot  ploughshares  ; 
in  another  to  thrust  his  ann  into  boiling  water  ;  in  another  to  be  thrown,  with  his 
hands  and  feet  bound,  into  cold  water  ;  in  another  to  swallow  the  morsel  of  execration  ; 
in  the  confidence  that  his  guilt  or  innocence  would  be  miraculously  made  known.  This 
mode  of  trial  was  nearly  extinct  at  the  time  of  Magna  Carta,  and  it  is  not  likely  that  it 
was  included  in  “  legem  terra,”  as  that  term  is  used  in  that  instrument.  This  idea  is 
corroborated  by  the  fact  that  the  trial  by  ordeal  was  specially  prohibited  only  four 
years  after  Magna  Carta,  “  by  act  of  Parliament  in  3  Henry  III.,  according  to  Sir  Ed¬ 
ward  Coke,  or  rather  by  an  order  of  the  king  in  council.”  —  3  Blackstone  345,  note. 

I  apprehend  that  this  trial  was  never  forced  upon  accused  persons,  but  was  only 
allowed  to  them,  as  an  appeal  to  God,  from  the  judgment  of  a  jury.* 

The  trial  by  compurgators  was  one  in  which,  if  the  accused  could  bring  twelvo  of  his 
neighbors,  who  would  make  oath  that  they  believed  him  innocent,  he  was  held  to  be  so. 
It  is  probable  that  this  trial  was  really  the  trial  by  jury,  or  was  allowed  as  an  appeal 
from  a  jury.  It  is  wholly  improbable  that  two  different  modes  of  trial,  so  nearly 
resembling  each  other  as  this  and  the  trial  by  jury  do,  should  prevail  at  the  same  time, 
and  among  a  rude  people,  whose  judicial  proceedings  would  naturally  be  of  the  simplest 
kind.  But  if  this  trial  really  were  any  other  than  the  trial  by  jury,  it  must  have  been 
nearly  or  quite  extinct  at  the  time  of  Magna  Carta;  and  there  is  no  probability  that  it 
was  included  in  “  legem  terra.” 

*  Ho’lam  says,  “  It  appears  as  if  the  ordeal  were  permitted  to  persons  already  convicted  by  the 
verdict  of  a  jury.”  —  2  Middle  Ages,  446,  note. 

4 


38 


TRIAL  BY  JURY. 


mon  law,  fixed  the  punishment  in  cases  where  the  question  of 
guilt  was  tried  by  a  jury;  or,  indeed,  that  it  did  in  any  other 
case.  Doubtless  certain  punishments  were  common  and  usual 
for  certain  offences;  but  I  do  not  think  it  can  be  shown  that 
the  common  law,  the  lex  terras, ,  which  the  king  was  sworn  to 
maintain,  required  any  one  specific  punishment,  or  any  precise 
amount  of  punishment,  for  any  one  specific  offence.  If  such 
a  thing  be  claimed,  it  must  be  shown,  for  it  cannot  be  pre¬ 
sumed.  In  fact,  the  contrary  must  be  presumed,  because,  in 
the  nature  of  things,  the  amount  of  punishment  proper  to  be 
inflicted  in  any  particular  case,  is  a  matter  requiring  the  exer¬ 
cise  of  discretion  at  the  time,  in  order  to  adapt  it  to  the  moral 
quality  of  the  offence,  which  is  different  in  each  case,  varying 
with  the  mental  and  moral  constitutions  of  the  offenders,  and 
the  circumstances  of  temptation  or  provocation.  And  Magna 
Carta  recognizes  this  principle  distinctly,  as  has  before  been 
shown,  in  providing  that  freemen,  merchants,  and  villeins, 
“  shall  not  be  amerced  for  a  small  crime,  but  according  to  the 
degree  of  the  crime;  and  for  a  great  crime  in  proportion  to  the 
magnitude  of  it;”  and  that  “none  of  the  aforesaid  amerce¬ 
ments  shall  be  imposed  (or  assessed)  but  by  the  oaths  of 
honest  men  of  the  neighborhood;”  and  that  “earls  and  barons 
shall  not  be  amerced  but  by  their  peers,  and  according  to  the 
quality  of  the  offence.” 

All  this  implies  that  the  moral  quality  of  the  offence  was  to- 
be  judged  of  at  the  trial,  and  that  the  punishment  was  to  be 
fixed  by  the  discretion  of  the  peers,  or  jury,  and  not  by  any 
such  unvarying  rule  as  a  common  law  rule  would  be. 

I  think,  therefore,  it  must  be  conceded  that,  in  all  cases, 
tried  by  a  jury,  Magna  Carta  intended  that  the  punishment 
should  be  fixed  by  the  jury,  and  not  by  the  common  law,  for 
these  several  reasons. 

1.  It  is  uncertain  v/hether  the  common  law  fixed  the  pun¬ 
ishment  of  any  offence  whatever. 

2.  The  words  “  per  judicium  parium  suorum ,”  according' 
to  the  sentence  of  his  peers,  imply  that  the  jury  fixed  the  sen¬ 
tence  in  some  cases  tried  by  them;  and  if  they  fixed  the 
sentence  in  some  cases,  it  must  be  presumed  they  did  in  all, 
unless  the  contrary  be  clearly  shown. 


LANGUAGE  OF  MAGNA  CARTA. 


39 


3.  The  express  provisions  of  Magna  Carta,  before  adverted 
to,  that  no  amercements,  or  fines,  should  be  imposed  upon 
freemen,  merchants,  or  villeins,  “but  by  the  oath  of  honest 
men  of  the  neighborhood,”  and  “  according  to  the  degree  of 
the  crime,”  and  that  “  earls  and  barons  should  not  be  amerced 
but  by  their  peers,  and  according  to  the  quality  of  the 
offence,”  proves  that,  at  least,  there  was  no  common  law 
fixing  the  amount  of  fines,  or,  if  there  were,  that  it  was  to  be 
no  longer  in  force.  And  if  there  was  no  common  law  fixing 
the  amount  of  fines ,  or  if  it  was  to  be  no  longer  in  force,  it  is 
reasonable  to  infer,  (in  the  absence  of  all  evidence  to  the  con¬ 
trary,)  either  that  the  common  law  did  not  fix  the  amount  of 
any  other  punishment,  or  that  it  was  to  be  no  longer  in  force 
for  that  purpose.* 

Under  the  Saxon  laws,  fines,  payable  to  the  injured  party, 
seem  to  have  been  the  common  punishments  for  all  offences. 
Even  murder  was  punishable  by  a  fine  payable  to  the  relatives 
of  the  deceased.  The  murder  of  the  king  even  was  punishable 


*  Coke  attempts  to  show  that  there  is  a  distinction  between  amercements  and  fines  — 
admitting  that  amercements  must  be  fixed  by  one’s  peers,  but  claiming  that  fines  may 
■be  fixed  by  the  government.  (2  Inst.  27,  8  Coke's  Reports  38.)  But  there  seems  to 
.have  been  no  ground  whatever  for  supposing  that  any  such  distinction  existed  at  the 
time  of  Magna  Carta.  If  there  were  any  such  distinction  in  the  time  of  Coke,  it  had 
doubtless  grown  up  within  the  four  centuries  that  had  elapsed  since  Magna  Carta,  and 
is  to  be  set  down  as  one  of  the  numberless  inventions  of  government  for  getting  rid  of 
the  restraints  of  Magna  Carta,  and  for  taking  men  out  of  the  protection  of  their  peers, 
and  subjecting  them  to  such  punishments  as  the  government  chooses  to  inflict. 

The  first  statute  of  Westminster,  passed  sixty  years  after  Magna  Carta,  treats  the 
fine  and  amercement  as  synonymous,  as  follows: 

“  Forasmuch  as  the  common  fine  and  amercement  of  the  whole  county  in  Eyre  of  the 
justices  for  false  judgments,  or  for  other  trespass,  is  unjustly  assessed  by  sheriffs  and 
bare  tors  in  the  shires,  *  *  it  is  provided,  and  the  king  wills,  that  from  henceforth  such 
sums  shall  be  assessed  before  the  justices  in  Eyre,  afore  their  departure,  by  the  oath  of 
knights  and  other  honest  men.''  &c.  —  3  Edward  /-,  Ch.  18.  {12(5.) 

And  in  many  other  statutes  passed  after  Magna  Carta,  the  terms  fine  and  amercement 
seem  to  be  used  indifferently,  in  prescribing  the  punishments  for  offences.  As  late  as 
1401,  (240  years  after  Magna  Carta,)  the  statute  1  Edward  IV.,  Ch.  2,  speaks  of  “  fines, 
transoms,  and  amerciaments  "  as  being  levied  upon  criminals,  as  if  they  were  the  common 
punishments  of  offences. 

St.  2  and  3  Philip  and  Mary ,  Ch.  8,  uses  the  terms,  “fines,  forfeitures,  and  amercia¬ 
ments  "  five  times.  (1555.) 

St.  5  Elizabeth,  Ch.  13,  Sec.  10,  uses  the  terms  “  fines,  forfeitures,  and  amerciaments." 

That  amercements  were  fines,  or  pecuniary  punishments,  inflicted  for  offences,  is 
proved  by  the  followiug  statutes,  (all  supposed  to  have  been  passed  within  one  hundred 


40 


TRIAL  BY  JURY. 


by  fine.  When  a  criminal  was  unable  to  pny  his  fine,  his  rel¬ 
atives  often  paid  it  for  him.  But  if  it  were  not  paid,  he  was 
put  out  of  the  protection  of  the  law,  and  the  injured  parties, 
(or,  in  the  case  of  murder,  the  kindred  of  the  deceased,)  were 
allowed  to  inflict  such  punishment  as  they  pleased.  And  if 
the  relatives  of  the  criminal  protected  him,  it  was  lawful  to 
take  vengeance  on  them  also.  Afterwards  the  custom  grew 
up  of  exacting  fines  also  to  the  king  as  a  punishment  for 
offences.*  And  this  latter  was,  doubtless,  the  usual  punish¬ 
ment  at  the  time  of  Magna  Carta,  as  is  evidenced  by  the  fact 
that  for  many  years  immediately  following  Magna  Carta, 
nearly  or  rpiite  all  statutes  that  prescribed  any  punishment 
at  all,  prescribed  that  the  offender  should  “  be  grievously 
amerced,”  or  “pay  a  great  fine  to  the  king,”  or  a  “  grievous 
ransom,”  —  with  the  alternative  in  some  cases  (perhaps  un¬ 
derstood  in  all)  of  imprisonment,  banishment,  or  outlawry,  in 
case  of  non-payment.-}- 

and  fifteen  years  after  Magna  Carta,)  which  speak  of  amercements  as  a  species  of 
‘‘judgment,”  or  punishment,  and  as  being  inflicted  for  the  same  offences  as  other 
“judgments.” 

Thus  one  statute  declares  that  a  baker,  for  default  in  the  weight  of  his  bread, 
“ought  to  be  amerced,  or  suffer  the  judgment  of  the  pillory  and  that  a  brewer,  for 
“  selling  ale  contrary  to  the  assize,”  “ought  to  be  amerced,  or  suffer  the  judgment  of 
the  tumbrel.” — 51  Henry  III.,  St.  G.  (12GG.) 

Among  the  “  Statutes  of  Uncertain  Date”  but  supposed  to  be  prior  to  Edward  III., 
(132G,)  are  the  following: 

Chap.  G  provides  that  “  if  a  brewer  break  the  assize,  (fixing  the  price  of  ale,)  the 
first,  second,  and  third  time,  he  shall  be  amerced  j  but  the  fourth  time  he  shall  suffer 
judgment  of  the  pillory  without  redemption.” 

Chap.  7  provides  that  “  a  butcher  that  selleth  swine's  flesh  measled,  or  flesh  dead 
of  the  murrain,  or  that  buyeth  flesh  of  Jews,  and  selleth  the  same  unto  Christians, 
after  he  shall  be  convict  thereof,  for  the  first  time  he  shall  be  grievously  amerced  ;  the 
second  time  he  shall  suffer  judgment  of  the  pillory  ;  and  the  third  time  he  shall  be 
imprisoned  and  make  fine  ,*  and  the  fourth  time  he  shall  forswear  the  town. 

Chap.  10,  a  statute  against,  forestalling,  provides  that, 

“  lie  that  is  convict  thereof,  the  first  time  shall  be  amerced,  and  shall  lose  the  thing, 
so  bought,  and  that  according  to  the  custom  of  the  town  \  he  that  is  convicted  the 
second  time  shall  have  judgment  of  the  pillory  ;  at  the  third  time  he  shall  be  im¬ 
prisoned  and  make  fine  ,*  the  fourth  time  he  shall  abjure  the  town.  And  this  judgment 
shall  be  given  upon  all  manner  of  forestallers,  and  likewise  upon  them  that  ha-ve  given 
them  counsel,  help,  or  favor.”  —  1  Ruffkead’s  Statutes ,  187,  188.  1  Statutes  of  the 

Realm,  203. 

*  1  I-Iume,  Appendix,  1. 

t  Blackstone  says,  “  Our  ancient  Saxon  laws  nominally  punished  theft  with  death, 
if  above  the  value  of  twelve  pence  ;  but  the  criminal  was  permitted  to  redeem  his  life 


LANGUAGE  OF  MAGNA  CARTA. 


41 


Judging,  therefore,  from  the  special  provisions  in  Magna 
Carta,  requiring^*,  or  amercements,  to  be  imposed  only  by 
juries,  (without  mentioning  any  other  punishments;)  judging, 
also,  from  the  statutes  which  immediately  followed  Magna 
Carta,  it  is  probable  that  the  Saxon  custom  of  punishing  all, 
or  nearly  all,  offences  by  fines,  (with  the  alternative  to  the 
criminal  of  being  imprisoned,  banished,  or  outlawed,  and  ex¬ 
posed  to  private  vengeance,  in  case  of  non-payment,)  continued 
until  the  time  of  Magna  Carta;  and  that  in  providing  expressly 
that  fines  should  be  fixed  by  the  juries,  Magna  Carta  provided 
for  nearly  or  quite  all  the  punishments  that  were  expected  to 
be  inflicted;  that  if  there  were  to  be  any  others,  they  were  to 
be  fixed  by  the  juries;  and  consequently  that  nothing  was  left 
to  be  fixed  by  “ legem  terrce." 

But  whether  the  common  law  fixed  the  punishment  of  any 
offences,  or  not,  is  a  matter  of  little  or  no  practical  importance 
at  this  day;  because  we  have  no  idea  of  going  back  to  any 
common  law  punishments  of  six  hundred  years  ago,  if,  indeed, 
there  were  any  such  at  that  time.  It  is  enough  for  us  to 

know  —  and  this  is  what  it  is  material  for  us  to  know _ 

that  the  jury  fixed  the  punishments,  in  all  cases,  unless  they 
were  fixed  by  the  common  law;  that  Magna  Carta  allowed 


by  a  pecuniary  ransom,  as  among  their  ancestors,  the  Germans,  by  a  stated  number  of 
cattle.  But  in  the  ninth  year  of  Henry  the  First,  (1109,)  this  power  of  redemption  was 
taken  away,  and  all  persons  guilty  of  larceny  above  the  value  of  twelve  pence  were 
directed  to  be  banged,  which  law  continues  in  force  to  this  day.”  —  4  Blackstonc,  238. 

I  give  this  statement  of  Blackstonc,  because  the  latter  clause  may  seem  to  militate 
with  the  idea,  which  the  former  clause  corroborates,  viz.,  that  at  the  time  of  Magna  Carta, 
fines  were  the  usual  punishments  of  offences.  But  I  think  there  is  no  probability  that 
a  law  so  unreasonable  in  itself,  (unreasonable  even  after  making  all  allowance  for  the 
difference  in  the  value  of  money,)  and  so  contrary  to  immemorial  custom,  could  or  did 
obtain  any  general  or  speedy  acquiescence  among  a  people  who  cared  little  for  the  au¬ 
thority  of  kings. 

Maddox,  writing  of  the  period  from  William  the  Conqueror  to  John,  says  : 

“  The  amercements  in  criminal  and  common  pleas,  which  were  wont  to  be  imposed 
during  this  first  period  and  afterwards,  were  of  so  many  several  sorts,  that  it  is  not  easy 
to  place  them  under  distinct  heads.  Let  them,  for  method’s  sake,  be  reduced  to  the 
beads  following  :  Amercements  for  or  by  reason  of  murders  and  manslaughters,  for 
misdemeanors,  for  disseisins,  for  recreancy,  for  breach  of  assize,  for  defaults,  for  non- 
appearance,  for  false  judgment,  and  for  not  making  suit,  or  hue  and  cry.  To  them 
may  be  added  miscellaneous  amercements,  for  trespasses  of  divers  kinds.”  —  1  Mad¬ 
dox’  History  of  the  Exchequer,  542. 

4* 


42 


TRIAL  BY  JURY. 


no  punishments  to  he  prescribed  by  statute  —  that  is,  by  the 
legislative  power — nor  in  any  other  manner  by  the  king,  or  his 
judges,  in  any  case  whatever;  and,  consequently,  that  all  stat¬ 
utes  prescribing  particular  punishments  for  particular  offences, 
or  giving  the  king’s  judges  any  authority  to  fix  punishments, 
were  void. 

If  the  power  to  fix  punishments  had  been  left  in  the  hands 
of  the  king,  it  would  have  given  him  a  power  of  oppression, 
which  was  liable  to  be  greatly  abused ;  which  there  was  no 
occasion  to  leave  with  him  ;  and  which  would  have  been 
incongruous  with  the  whole  object  of  this  chapter  of  Magna 
Carta;  which  object  was  to  take  all  discretionary  or  arbitrary 
power  over  individuals  entirely  out  of  the  hands  of  the  king, 
and  his  laws,  and  entrust  it  only  to  the  common  law,  and  the 
peers,  or  jury  —  that  is,  the  people. 

What  lex  terroe  did  authorize. 

But  here  the  question  arises,  What  then  did  u  legem  terrce  ” 
authorize  the  king,  (that  is,  the  government,)  to  do  in  the  case 
of  an  accused  person,  if  it  neither  authorized  any  other  trial 
than  that  by  jury,  nor  any  other  punishments  than  those  fixed 
by  juries  1 

The  answer  is,  that,  owing  to  the  darkness  of  history  on 
the  point,  it  is  probably  wholly  impossible,  at  this  day,  to 
state,  with  any  certainty  or  •precision ,  anything  whatever  that 
the  legem  terrce  of  Magna  Carta  did  authorize  the  king,  (that 
is,  the  government,)  to  do,  (if,  indeed,  it  authorized  him  to  do 
anything,)  in  the  case  of  criminals,  other  than  to  have  them 
tried  and  sentenced  by  their  peei'S,  for  common  law  crimes  ; 
and  to  carry  that  sentence  into  execution. 

The  trial  by  jury  was  a  part  of  legem  terrce ,  and  we  have 
the  means  of  knowing  what  the  trial  by  jury  was.  The  fact 
that  the  jury  were  to  fix  the  sentence,  implies  that  they  were 
to  try  the  accused ;  otherwise  they  could  not  know  what  sen¬ 
tence,  or  whether  any  sentence,  ought  to  be  inflicted  upon  him. 
Hence  it  follows  that  the  jury  were  to  judge  of  everything  in¬ 
volved  in  the  trial ;  that  is,  they  were  to  judge  of  the  nature 
of  the  offence,  of  the  admissibility  and  weight  of  testimony, 
and  of  everything  else  whatsoever  that  was  of  the  essence  of 


LANGUAGE  OF  MAGNA  CARTA. 


43 


the  trial.  If  anything  whatever  could  be  dictated  to  them, 
either  of  law  or  evidence,  the  sentence  would  not  be  theirs, 
but  would  be  dictated  to  them  by  the  power  that  dictated  to 
them  the  law  or  evidence.  The  trial  and  sentence,  then,  were 
wholly  in  the  hands  of  the  jury. 

We  also  have  sufficient  evidence  of  the  nature  of  the  oath 
administered  to  jurors  in  criminal  cases.  It  was  simply,  that 
they  would  neither  convict  the  innocent ,  nor  acquit  the  guilty. 
This  was  the  oath  in  the  Saxon  times,  and  probably  continued 
to  be  until  Magna  Carta. 

We  also  know  that,  in  case  of  conviction ,  the  sentence  of  the 
jury  was  not  necessarily  final;  that  the  accused  had  the  right 
of  appeal  to  the  king  and  his  judges,  and  to  demand  either  a 
new  trial,  or  an  acquittal,  if  the  trial  or  conviction  had  been 
against  law. 

So  much,  therefore,  of  the  legem  terree  of  Magna  Carta,  we 
know  with  reasonable  certainty. 

We  also  know  that  Magna  Carta  provides  that  “No  bailiff 
( balivus )  shall  hereafter  put  any  man  to  his  law,  (put  him 
on  trial,)  on  his  single  testimony,  without  credible  witnesses 
brought  to  support  it.”  Coke  thinks  “  that  under  this  word 
balivus ,  in  this  act,  is  comprehended  every  justice,  minister  of 
the  king,  steward  of  the  king,  steward  and  bailiff.”  (2  Inst.  44.) 
And  in  support  of  this  idea  he  quotes  from  a  very  ancient  law 
book,  called  the  Mirror  of  Justices,  written  in  the  time  of 
Edward  I.,  within  a  century  after  Magna  Carta.  But  whether 
this  were  really  a  common  law  principle,  or  whether  the  pro¬ 
vision  grew  out  of  that  jealousy  of  the  government  which,  at 
the  time  of  Magna  Carta,  had  reached  its  height,  cannot  per¬ 
haps  now  be  determined. 

We  also  know  that,  by  Magna  Carta,  amercements,  or  fines, 
could  not  be  imposed  to  the  ruin  of  the  criminal ;  that,  in  the 
case  of  a  freeman,  his  contenement ,  or  means  of  subsisting  in 
the  condition  of  a  freeman,  must  be  saved  to  him ;  that,  in  the 
case  of  a  merchant,  his  merchandise  must  be  spared ;  and 
in  the  case  of  a  villein,  his  xoaynage ,  or  plough-tackle  and 
carts.  This  also  is  likely  to  have  been  a  principle  of  the 
common  law,  inasmuch  as,  in  that  rude  age,  when  the  means 
of  getting  employment  as  laborers  were  not  what  they  are 


44 


TRIAL  BY  JURY. 


now,  the  man  and  his  family  would  probably  have  been  liable 
to  starvation,  if  these  means  of  subsistence  had  been  taken 
from  him. 

We  also  know,  generally ,  that,  at  the  time  of  Magna  Carta, 
all  acts  intrinsically  criminal ,  all  trespasses  against  persons 
and  property,  were  crimes,  according  to  lex  terrce ,  or  the 
common  law. 

Beyond  the  points  now  given,  we  hardly  know  anything, 
probably  nothing  with  certainty ,  as  to  what  the  '■'■legem  terrce ” 
of  Magna  Carta  did  authorize,  in  regard  to  crimes.  There 
is  hardly  anything  extant  that  can  give  us  any  real  light  on 
the  subject. 

It  would  seem,  however,  that  there  were,  even  at  that  day, 
some  common  law  principles  governing  arrests ;  and  some 
common  law  forms  and  rules  as  to  holding  a  man  for  trial, 
(by  bailor  imprisonment;)  putting  him  on  trial,  such  as  by 
indictment  or  complaint ;  summoning  and  empanelling  ju¬ 
rors,  &c.,  &c.  Whatever  these  common  law  principles  were, 
Magna  Carta  requires  them  to  be  observed;  for  Magna  Carta 
provides  for  the  whole  proceedings,  commencing  with  the 
arrest,  (“no  freeman  shall  be  arrested.''  &c.,)  and  ending  with 
the  execution  of  the  sentence.  And  it  provides  that  nothing 
shall  be  done,  by  the  government,  from  beginning  to  end,  unless 
according  to  the  sentence  of  the  peers,  or  “  legem  terrce,”  the 
common  law.  The  trial  by  peers  was  a  part  of  legem  terrce , 
and  we  have  seen  that  the  peers  must  necessarily  have  gov¬ 
erned  the  whole  proceedings  at  the  trial.  But  all  the  pro¬ 
ceedings  for  arresting  the  man,  and  bringing  him  to  trial, 
must  have  been  had  before  the  case  could  come  under  the 
cognizance  of  the  peers,  and  they  must,  therefore,  have  been 
governed  by  other  rules  than  the  discretion  of  the  peers.  We 
may  conjecture,  although  we  cannot  perhaps  know  with  much 
certainty,  that  the  lex  terrce ,  or  common  law,  governing  these 
other  proceedings,  was  somewhat  similar  to  the  common  law 
principles,  on  the  same  points,  at  the  present  day.  Such  seem 
to  be  the  opinions  of  Coke,  who  says  that  the  phrase  nisi  per 
legem  terrce  means  unless  by  due  process  of  law. 

Thus,  he  says: 

11  Nisi  per  legem  terrce.  But  by  the  law  of  the  land.  For 


LANGUAGE  OF  MAGNA  CARTA. 


45 


the  true  sense  and  exposition  of  these  words,  see  the  statute 
of  37  Rdw.  III.,  cap.  8,  where  the  words,  by  the  law  of  the 
land,  are  rendered  without  due  process  of  law ;  for  there  it  is 
said,  though  it  be  contained  in  the  Great  Charter,  that  no 
man  be  taken,  imprisoned,  or  put  out  of  his  freehold,  without 
process  of  the  law;  that  is,  by  indictment  or  presentment  of 
good  and  lawful  men,  idler e  such  deeds  be  done  in  due  manner , 
or  by  writ  original  of  the  common  law. 

“Without  being  brought  in  to  answer  but  by  due  process 
of  the  common  law. 

“  No  man  be  put  to  answer  without  presentment  before  jus¬ 
tices.  or  thing  of  record,  or  by  due  process,  or  by  writ  original, 
according  to  the  old  law  of  the  land."  —  2  Inst.  50. 

The  foregoing  interpretations  of  the  words  nisi  per  legem 
terra:  are  corroborated  by  the  following  statutes,  enacted  in 
the  next  century  after  Magna  Carta. 

“  That  no  man,  from  henceforth,  shall  be  attached  by  any 
accusation,  nor  forejudged  of  life  or  limb,  nor  his  land,  tene¬ 
ments,  goods,  nor  chattels,  seized  into  the  king’s  hands,  against 
the  form  of  the  Great  Charter,  and  the  law  of  the  land.”  — 
St.  5  Edward  III.,  Ch.  9.  (1331.) 

“  Whereas  it  is  contained  in  the  Great  Charter  of  the  fran¬ 
chises  of  England,  that  none  shall  be  imprisoned,  nor  put  out 
of  his  freehold,  nor  of  his  franchises,  nor  free  customs,  unless 
it  be  by  the  law  of  the  land :  it  is  accorded,  assented,  and  estab¬ 
lished,  that  from  henceforth  none  shall  be  taken  by  petition, 
or  suggestion  made  to  our  lord  the  king,  or  to  his  council, 
unless  it  be  by  indictment  or  presentment  of  good  and  lawful 
people  of  the  same  neighborhood  where  such  deeds  be  done  in 
due  manner ,  or  by  process  made  by  writ  original  at  the  common 
law  ;  nor  that  none  be  put  out  of  his  franchises,  nor  of  his  free¬ 
hold,  unless  he  be  duly  brought  into  answer ,  and  forejudged, 
of  the  same  by  the  course  of  the  law ;  and  if  anything  be  done 
against  the  same,  it  shall  be  redressed  and  holden  for  none.” 
—  St.  25  Edward  III ,  Ch.  4.  (1350.) 

“  That  no  man,  of  what  estate  or  condition  that  he  be,  shall 
be  put  out  of  land  or  tenement,  nor  taken,  nor  imprisoned,  nor 
disinherited,  nor  put  to  death,  without  being  brought  in  answer 
by  due  process  of  law.”  —  St.  28  Edward  III.,  Ch.  3.  (1354.) 

“That  no  man  be  put  to  answer  without  presentment  before 
justices,  or  matter  of  record,  or  by  due  process  and  writ  origi¬ 
nal,  according  to  the  old  law  of  the  land.  And  if  anything 
from  henceforth  be  done  to  the  contrary,  it  shall  be  void  in 
law,  and  holden  for  error.”  —  St.  42  Edward  III,  Ch.  3. 
(1368.) 


46 


TRIAL  BY  JURY. 


The  foregoing  interpretation  of  the  words  nisi  per  legem 
terra  —  that  is,  by  due  process  of  law —  including. indictment, 
&c.,  has  been  adopted  as  the  true  one  by  modern  writers  and 
courts;  as,  for  example,  by  Kent,  (2  Comm.  13,)  Story,  (3 
Comm.  661,)  and  the  Supreme  Court  of  New  York,  (19  Wen¬ 
dell,  676;  4  Hill,  146.) 

The  fifth  amendment  to  the  constitution  of  the  United  States 
seems  to  have  been  framed  on  the  same  idea,  inasmuch  as  it 
provides  that  “no  person  shall  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  laiv."* 

Whether  the  word  vel  should  be  rendered  by  or,  or  by  and. 

Having  thus  given  the  meanings,  or  rather  the  applications, 
which  the  words  vel  per  legem  terra  will  reasonably,  and  per¬ 
haps  must  necessarily,  bear,  it  is  proper  to  suggest,  that  it  has 
been  supposed  by  some  that  the  word  vel,  instead  of  being  ren¬ 
dered  by  or,  as  it  usually  is,  ought  to  be  rendered  by  and,,  inas¬ 
much  as  the  word  vel  is  often  used  for  et,  and  the  whole  phrase 
nisi  per  judicium  parium  suorum,  vel  per  legem  terra,  (which 
would  then  read,  unless  by  the  sentence  of  his  peers,  and  the 
law  of  the  land,)  would  convey  a  more  intelligible  and  har¬ 
monious  meaning  than  it  otherwise  does. 

Blackstone  suggests  that  this  may  be  the  true  reading. 
(Charters,  p.  41.)  Also  Mr.  Hallam,  who  says: 

“  Nisi  per  legale  judicium  parium  suorum,  vel  per  legem  terras. 
Several  explanations  have  been  offered  of  the  alternative 
clause;  which  some  have  referred  to  judgment  by  default,  or 
demurrer;  others  to  the  process  of  attachment  for  contempt. 
Certainly  there  are  many  legal  procedures  besides  trial  by 
jury,  through  which  a  party’s  goods  or  person  may  be  taken. 
But  one  may  doubt  whether  these  were  in  contemplation  of 
the  framers  of  Magna  Carta.  In  an  entry  of  the  Charter  ot 
1217  by  a  contemporary  hand,  preserved  in  the  Town-clerk  s 
office  in  London,  called  Liber  Custumarum  et  Regum  antiqua- 
rum,  a  various  reading,  et  per  legem  terrse,  occurs.  Black- 
stone's  Charters,  p.  42  (41.)  And  the  word  vel  is  so  frequently 
used  for  et,  that  I  am  not  wholly  free  from  a  suspicion  that  it 


*  Coke,  in  his  exposition  of  the  words  legem  terree,  gives  quite  in  detail  the  principles 
of  the  common  law  governing  arrests  ;  and  takes  it  for  granted  that  the  words  “  nisi  per 
legem  terree ”  are  applicable  to  arrests,  as  well  as  to  the  indictment,  <5sc.  —  2  Inst.,  61,  62. 


LANGUAGE  OF  MAGNA  CARTA. 


47 


Avas  so  intended  in  this  place.  The  meaning  will  be,  that  no 
person  shall  be  disseized,  &c.,  except  upon  a  lawful  cause  of 
action,  found  by  the  verdict  of  a  jury.  This  really  seems  as 
good  as  any  of  the  disjunctive  interpretations;  but  I  do  not 
offer  it  with  much  confidence.” — 2  Hullam's  Middle  Ages, 
Ch.  8,  Part  2,  p.  449,  note .* 


*  I  cite  the  above  extract  from  Mr.  Hallam  solely  for  the  sake  of  his  authority  for 
rendering  the  word  vel  by  and;  and  not  by  any  means  for  the  purpose  of  indorsing  the 
opinion  he  suggests,  that  legem  terras  authorized  “  judgments  by  default  or  demurrer,” 
without  the  intervention  of  a  jury.  He  seems  to  imagine  that  lex  terra,  the  common  law, 
at  the  time  of  Magna  Carta,  included  everything,  even  to  the  practice  of  courts,  that 
is,  at  this  day,  called  by  the  name  of  Common  Law  ;  whereas  much  of  what  is  now 
called  Common  Law  has  grown  up,  by  usurpation,  since  the  time  of  Magna  Carta,  in 
palpable  violation  of  the  authority  of  that  charter.  He  says,  “  Certainly  there  are 
many  legal  procedures,  besides  trial  by  jury,  through  which  a  party’s  goods  or  person 
may  be  taken.”  Of  course  there  are  now  many  such  ways,  in  which  a  party’s  goods  or 
person  are  taken,  besides  by  the  judgment  of  a  jury  ;  but  the  question  is,  whether  such 
takings  are  not  in  violation  of  Magna  Carta. 

He  seems  to  think  that,  in  cases  of  “judgment  by  default  or  demurrer,”  there  is  no 
need  of  a  jury,  and  thence  to  infer  that  legem  terra  may  not  have  required  a  jury  in 
those  cases.  But  this  opinion  is  founded  on  the  erroneous  idea  that  juries  are  required 
only  for  determining  contested  facts,  and  not  for  judging  of  the  law.  In  case  of  default, 
the  plaintiff  must  present  a  prima  facie  case  before  he  is  entitled  to  a  judgment ;  and 
Magna  Carta,  (supposing  it  to  require  a  jury  trial  in  civil  cases,  as  Mr.  Hallam  assumes 
that  it  does,)  as  much  requires  that  this  prima  facie  case,  both  law  and  fact,  be  made 
out  to  the  satisfaction  of  a  jury,  as  it  does  that  a  contested  case  shall  be. 

As  for  a  demurrer,  the  jury  must  try  a  demurrer  (having  the  advice  and  assistance 
of  the  court,  of  course)  as  much  as  any  other  matter  of  law  arising  in  a  case. 

Mr.  Hallam  evidently  thinks  there  is  no  use  for  a  jury,  except  where  there  is  a 
“  trial  ”  —  meaning  thereby  a  contest  on  matters  of  fact.  His  language  is,  that  “  there 
are  many  legal  procedures,  besides  trial  by  jury,  through  which  a  party’s  goods  or 
person  may  be  taken.”  Now  Magna  Carta  says  nothing  of  trial  by  jury;  but  only  of 
the  judgment,  or  sentence,  of  a  jury.  It  is  only  by  inference  that  we  come  to  the  con¬ 
clusion  that  there  must  be  a  trial  by  jury.  Since  the  jury  alone  can  give  the  judgment , 
or  sentence,  we  infer  that  they  must  try  the  case ;  because  otherwise  they  would  be  in¬ 
competent,  and  would  have  no  moral  right,  to  give  judgment.  They  must,  therefore, 
examine  the  grounds,  (both  of  law  and  fact,)  or  rather  try  the  grounds,  of  every  action 
whatsoever,  whether  it  bo  decided  on  “default,  demurrer,”  or  otherwise,  and  render 
their  judgment,  or  sentence,  thereon,  before  any  judgment  can  be  a  legal  one,  on  which 
“  to  take  a  party’s  goods  or  person.”  In  short,  the  principle  of  Magna  Carta  is,  that 
no  judgment  can  be  valid  against  a  party's  goods  or  person,  (not  even  a  judgment  for 
costs,)  except  a  judgment  rendered  by  a  jury.  Of  course  a  jury  must  try  every  ques¬ 
tion,  both  of  law  and  fact,  that  is  involved  in  the  rendering  of  that  judgment.  They 
are  to  have  the  assistance  and  advice  of  the  judges,  so  far  as  they  desire  them;  but 
the  judgment  itself  must  be  theirs,  and  not  the  judgment  of  the  court. 

As  to  “  process  of  attachment  for  contempt,”  it  is  of  course  lawful  for  a  judge,  in  his 
character  of  a  peace  officer,  to  issue  a  warrant  for  the  arrest  of  a  man  guilty  of  a  con¬ 
tempt,  he  would  for  the  arrest  of  any  other  offender,  and  hold  him  to  bail,  (or,  iu 
default  of  bail,  commit  him  to  prison,)  to  answer  for  his  offence  before  a  jury.  Or  ho 


48 


TRIAL  BY  JURY. 


The  idea  that  the  word  vel  should  he  rendered  by  and,  is 
corroborated,  if  not  absolutely  confirmed,  by  the  following 
passage  in  Blackstone,  which  has  before  been  cited.  Speak¬ 
ing  of  the  trial  by  jury,  as  established  by  Magna  Carta,  he 
calls  it, 

“  A  privilege  which  is  couched  in  almost  the  same  words 


may  order  him  into  custody  without  a  warrant  when  the  offence  is  committed  in  the 
judge’s  presence.  But  there  is  no  reason  why  a  judge  should  have  the  power  of  pun¬ 
ishing  for  contempt,  any  more  than  for  any  other  offence.  And  it  is  one  of  the  most 
dangerous  powers  a  judge  can  have,  because  it  gives  him  absolute  authority  in  a  court 
of  justice,  and  enables  him  to  tyrannize  as  lie  pleases  over  parties,  counsel,  witnesses, 
and  jurors.  If  a  judge  have  power  to  punish  for  contempt,  and  to  determine  for  him¬ 
self  what  is  a  contempt,  the  whole  administration  of  justice  (or  injustice,  if  he  choose 
to  make  it  so)  is  in  his  hands.  And  all  the  rights  of  jurors,  witnesses,  counsel,  and 
parties,  are  held  subject  to  his  pleasure,  and  can  be  exercised  only  agreeably  to  his  will. 
He  can  of  course  control  the  entire  proceedings  in,  and  consequently  the  decision  of, 
every  cause,  by  restraining  and  punishing  every  one,  whether  party,  counsel,  witness, 
or  juror,  who  presumes  to  offer  anything  contrary  to  his  pleasure. 

This  arbitrary  power,  which  has  been  usurped  and  exercised  by  judges  to  punish  for 
contempt,  has  undoubtedly  had  much  to  do  in  subduing  counsel  into  those  servile, 
obsequious,  and  cowardly  habits,  which  so  universally  prevail  among  them,  and  which 
have  not  only  cost  so  many  clients  their  rights,  but  have  also  cost  the  people  so  many 
of  their  liberties. 

If  any  summary  punishment  for  contempt  be  ever  necessary,  (as  it  probably  is  not,) 
beyond  exclusion  for  the  time  being  from  the  court-room,  (which  should  be  done,  not  as 
a  punishment,  but  for  self-protection,  and  the  preservation  of  order,)  the  judgment  for 
it  should  be  given  by  the  jury,  (where  the  trial  is  before  a  jury,)  and  not  by  the  court, 
for  the  jury,  and  not  the  court,  are  really  the  judges.  For  the  same  reason,  exclusion 
from  the  court-room  should  be  ordered  only  by  the  jury,  in  cases  when  the  trial  is 
before  a  jury,  because  they,  being  the  real  judges  and  triers  of  the  cause,  are  entitled, 
if  anybody,  to  the  control  of  the  court-room.  In  appeal  courts,  where  no  juries  sit,  it 
may  be  necessary  —  not  as  a  punishment,  but  for  self-protection,  and  the  maintenance 
of  order  —  that  the  court  should  exercise  the  power  of  excluding  a  person,  for  the  time 
being,  from  the  court-room ;  but  there  is  no  reason  why  they  should  proceed  to  sentence 
him  as  a  criminal,  without  his  being  tried  by  a  jury. 

If  the  people  wish  to  have  their  rights  respected  and  protected  in  courts  of  justice, 
it  is  manifestly  of  the  last  importance  that  they  jealously  guard  the  liberty  of  parties, 
counsel,  witnesses,  and  jurors,  against  all  arbitrary  power  on  the  part  of  the  court. 

Certainly  Mr.  Ilallam  may  very  well  say  that  “  one  may  doubt  whether  these  (the 
several  cases  he  has  mentioned)  were  in  contemplation  of  the  framers  of  Magna 
Carta”  —  that  is,  as  exceptions  to  the  rule  requiring  that  all  judgments,  that  are  to  be 
enforced  “  against  a  party's  goods  or  person,"  be  rendered  by  a  jury. 

Again,  Mr.  Hallam  says,  if  the  word  vel  be  rendered  by  and,  “  the  meaning  will  be, 
that  no  person  shall  be  disseized,  &c.,  except  upon  a  lawful  cause  of  action."  This  is 
true  ;  but  it  does  not  follow  that  any  cause  of  action,  founded  on  statute  only,  is  there¬ 
fore  a  “  lawful  cause  of  action,”  within  the  meaning  of  legem  terra:,  or  the  Common 
Law.  Within  the  meaning  of  the  legem  terra  of  Magna  Carta,  nothing  but  a  common 
law  cause  of  action  is  a  “  lawful  "  one. 


LANGUAGE  OF  MAGNA  CARTA. 


49 


with  that  of  the  Emperor  Conrad  two  hundred  years  before: 
‘nemo  beneficium  suum  perdat,  nisi  secundum  consuetudinem 
antecessorum  nostrorurn,  et  judicium  parium  suorum.’ ”  (No 
one  shall  lose  his  estate  unless  according  to  the  custom  of  our 
ancestors,  and  the  judgment  of  his  peers.)  — 3  Blackstone ,  350. 

If  the  word  vel  be  rendered  by  and,  (as  I  think  it  must  be, 
at  least  in  some  cases,)  this  chapter  of  Magna  Carta  will  then 
read  that  no  freeman  shall  be  arrested  or  punished,  “unless 
according  to  the  sentence  of  his  peers,  and  the  law  of  the 
land.” 

The  difference  between  this  reading  and  the  other  is  impor¬ 
tant.  In  the  one  case,  there  would  be,  at  first  view,  some  color 
of  ground  for  saying  that  a  man  might  be  punished  in  either 
of  two  ways,  viz.,  according  to  the  sentence  of  his  peers,  or 
according  to  the  law  of  the  land.  In  the  other  case,  it  requires 
both  the  sentence  of  his  peers  and  the  law  of  the  land  (com¬ 
mon  law)  to  authorize  his  punishment. 

If  this  latter  reading  be  adopted,  the  provision  would  seem 
to  exclude  all  trials  except  trial  by  jury,  and  all  causes  of 
action  except  those  of  the  common  law. 

But  I  apprehend  the  word  vel  must  be  rendered  both  by 
and,  and  by  or;  that  in  cases  of  a  judgment,  it  should  be 
rendered  by  and,  so  as  to  require  the  concurrence  both  of  “  the 
judgment  of  the  peers  and  the  law  of  the  land,”  to  authorize 
the  king  to  make  execution  upon  a  party’s  goods  or  person; 
but  that  in  cases  of  arrest  and  imprisonment,  simply  for  the 
purpose  of  bringing  a  man  to  trial,  vel  should  be  rendered  by 
or,  because  there  can  have  been  no  judgment  of  a  jury  in 
such  a  case,  and  “  the  law  of  the  land  ”  must  therefore  necessa¬ 
rily  be  the  only  guide  to,  and  restraint  upon,  the  king.  If  this 
guide  and  restraint  were  taken  away,  the  king  would  be 
invested  with  an  arbitrary  and  most  dangerous  power  in 
making  arrests,  and  confining  in  prison,  under  pretence  of  an 
intention  to  bring  to  trial. 

Having  thus  examined  the  language  of  this  chapter  of  Magna 
Carta,  so  far  as  it  relates  to  criminal  cases,  its  legal  import 
may  be  stated  as  follows,  viz. : 

No  freeman  shall  be  arrested,  or  imprisoned,  or  deprived  of 
his  freehold,  or  his  liberties,  or  free  customs,  or  be  outlawed, 
5 


50 


TRIAL  BY  JURY. 


or  exiled,  or  in  any  manner  destroyed,  (harmed,)  nor  will  we 
(the  king)  proceed  against  him,  nor  send  any  one  against  him, 
by  force  or  arms,  unless  according  to  (that  is,  in  execution 
of)  the  sentence  of  his  peers,  and  (or  or,  as  the  case  may 
require)  the  Common  Law  of  England,  (as  it  was  at  the  time 
of  Magna  Carta,  in  1215.) 


CHAPTER  III. 


ADDITIONAL  PROOFS  OF  THE  RIGHTS  AND  DUTIES  OF  JURORS. 


If  any  evidence,  extraneous  to  the  history  and  language 
of  Magna  Carta,  were  needed  to  prove  that,  by  that  chapter 
which  guaranties  the  trial  by  jury,  all  was  meant  that  has 
now  been  ascribed  to  it,  and  that  the  legislation  of  the  king 
was  to  be  of  no  authority  with  the  jury  beyond  if  hat  they  chose 
to  albw  to  it,  and  that  the  juries  were  to  limit  the  punishments 
to  be  inflicted,  we  should  find  that  evidence  in  various  sources, 
such  as  the  laws,  customs,  and  characters  of  their  ancestors 
on  the  continent,  and  of  the  northern  Europeans  generally;  in 
the  legislation  and  customs  that  immediately  succeeded  Magna 
Carta;  in  the  oaths  that  have  at  different  times  been  adminis¬ 
tered  to  jurors,  &c.,  &c.  This  evidence  can  be  exhibited  here 
but  partially.  To  give  it  all  would  require  too  much  space 
and  labor. 


section  t . 

Weakness  of  the  Regal  Authority. 

Hughes,  in  his  preface  to  his  translation  of  Horne’s  “  Mirror 
of  Justices, ”  (a  book  written  in  the  time  of  Edward  I..  1272 
to  1307,)  giving  a  concise  view  of  the  laws  of  England  gen¬ 
erally,  says: 

“Although  in  the  Saxon’s  time  I  find  the  usual  words 
of  the  acts  then  to  have  been  ediclnm,  (edict,)  conslitutio, 
(statute,)  little  mention  being  made  of  the  commons,  yet  I 
further  find  that,  turn  demwn  leges  vim  et  vigorcm  habuerunt, 
cum  fuerunt  non  rnodo  institutes  sed  finnatce  approbalione 
communitatis (The  laws  had  force  and  vigor  only  when 
they  were  not  only  enacted,  but  confirmed  by  the  approval 
of  the  community.) 


52 


TRIAL  BY  JURY'. 


The  Mirror  of  Justices  itself  also  says,  (ch.  1,  see.  3,)  in 
speaking  “  Of  the  first  Constitutions  of  the  Ancient  Kings 

“Many  ordinances  were  made  by  many  kings,  until  the 
time  of  the  king  that  now  is  (Edward  I.);  the" which  ordi¬ 
nances  were  abused,  or  not  used  by  many ,  nor  very  current , 
because  they  were  not  put  in  writing,  and  certainly  pub¬ 
lished.” —  Mirror  of  Justices,  p.  6. 

Hallam  says : 

“  The  Franks,  Lombards,  and  Saxons  seem  alike  to  hare 
been  jealous  of  judicial  authority;  and  averse  to  surrendering 
what  concerned  every  man’s  private  right,  out  of  the  hands 
of  his  neighbors  and  equals.”  —  l  Middle  Ages ,  271. 

The  “judicial  authority,”  here  spoken  of,  was  the  authority 
of  the  kings,  (who  at  that  time  united  the  office  of  both  legis¬ 
lators  and  judges,)  and  not  of  a  separate  department  of  gov¬ 
ernment,  called  the  judiciary,  like  what  has  existed  in  mor© 
modern  times.* 

Hume  says; 

“The  government  of  the  Germans,  and  that  of  all  the 
northern  nations,  who  established  themselves  on  the  ruins  of 
Rome,  Yvas  always  extremely  free ;  and  those  fierce  people, 
accustomed  to  independence  and  inured  to  arms,  were  more 
guided  by  persuasion  than  authority,  in  the  submission  wh  ich 
they  paid  to  their  princes.  The  military  despotism,  which 
had  taken  place  in  the  Roman  empire,  and  which,  previously 
to  the  irruption  of  those  conquerors,  had  sunk  the  genius  of 
men,  and  destroyed  every  noble  principle  of  science  and  virtue, 
was  unable  to  resist  the  vigorous  efforts  of  a  free  people,  and 
Europe,  as  from  a  new  epoch,  rekindled  her  ancient  spirit,  and 
shook  off  the  base  servitude  to  arbitrary  will  and  authority 
under  which  she  had  so  long  labored.  The  free  constitutions 
then  established,  however  impaired  by  the  encroachments 
of  succeeding  princes,  still  preserve  an  air  of  independence 
and  legal  administration,  which  distinguished  the  European 
nations;  and  if  that  part  of  the  globe  maintain  sentiments 


*  Hale  says  : 

“  The  trial  by  jury  of  twelve  men  was  the  usual  trial  among  the  Normans,  in  most 
3uits  ;  especially  in  assizes,  et  juris  wtrum.” —  1  Hale’s  History  of  the  Common  Low,  219. 

This  was  in  Normandy,  before  the  conquest  of  England  by  the  Normans.  See  Ditto , 
p.  218. 

Crabbe  says  : 

“  It  cannot  be  denied  that  the  practice  of  submitting  causes  to  the  decision  of  twelve 
men  was  universal  among  all  the  northern  tribes  (of  Europe)  from  the  very  remotest 
antiquity.” —  Crabbe’s  History  of  the  English  Law ,  p.  32. 


WEAKNESS  OF  THE  REGAL  AUTHORITY. 


©f  liberty,  honor,  equity,  and  valor,  superior  to  the  rest  of 
mankind,  it  owes  these  advantages  chiefly  to  the  seeds  im¬ 
planted  by  those  generous  barbarians. 

“  The  Saxons,  who  subdued  Britain,  as  they  enjoyed  great 
liberty  in  their  own  country ,  obstinately  retained  that  invaluable 
possession  in  their  new  settlement ;  and  they  imported  into  this 
island  the  same  principles  of  independence,  which  they  had 
inherited  from  their  ancestors.  The  chieftains,  ( for  such  they 
were,  'more  than  kings  or  princes.)  who  commanded  them,  in 
those  military  expeditions,  still  possessed  a  very  limited  author¬ 
ity  ;  and  as  the  Saxons  exterminated,  rather  than  subdued  the 
ancient  inhabitants,  they  were,  indeed,  transplanted  into  a 
new  territory,  but  preserved  unaltered  all  their  civil  and  mili¬ 
tary  institutions.  The  language  was  pure  Saxon;  even  the 
names  of  places,  which  often  remain  while  the  tongue  entirely 
changes,  were  almost  all  affixed  by  the  conquerors ;  the  man¬ 
ners  and  customs  were  wholly  German;  and  the  same  picture 
of  a  fierce  and  bold  liberty,  which  is  drawn  by  the  masterly 
pen  of  Tacitus,  will  suit  those  founders  of  the  English  govern¬ 
ment.  The  king,  so  far  from  being  invested  with  arbitrary 
power,  was  only  considered  as  the  first  among  the  citizens  ;  h  is 
authority  depended,  more  on  his  personal  qualities  than  on  his 
station ;  he  was  even  so  far  on  a  level  with  the  people,  that  a 
stated  price  was  fixed  for  his  head,  and  a  legal  fine  ivas  levied 
upon  his  murderer,  which  though  proportionate  to  his  station, 
and  superior  to  that  paid  for  the  life  of  a  subject,  teas  a  sen¬ 
sible  mark  of  his  subordination  to  the.  community .”  —  1  Hume, 
Appendix ,  1. 

Stuart  says : 

“  The  Saxons  brought  along  with  them  into  Britain  their 
own  customs,  language,  and  civil  institutions.  Free  in  Ger¬ 
many,  they  renounced  not  their  independence,  when  they  had 
conquered.  Proud  from  victory,  and  with  their  swords  in 
their  hands,  would  they  surrender  their  liberties  to  a  private 
man?  Would  temporary  leaders,  limited  in  their  powers, 
and  unprovided  in  resources,  ever  think  to  usurp  an  authority 
over  warriors,  who  considered  themselves  as  their  equals,  were 
impatient  of  control,  and  attached  with  devoted  zeal  to  their 
privileges?  Or,  would  they  find  leisure  to  form  resolutions, 
or  opportunities  to  put  them  in  practice,  amidst  the  tumult 
and  confusion  of  those  fierce  and  bloody  wars,  which  their  na¬ 
tions  first  waged  with  the  Britons,  and  then  engaged  in  among 
themselves?  Sufficiently  flattered  in  leading  the  armies  of 
their  countrymen,  the  ambition  of  commanders  could  as  little 
suggest  such  designs,  as  the  liberty  of  the  people  could  submit 
to  them.  The  conquerors  of  Britain  retained  their  independ- 
5 * 


54 


TRIAL  BY  JURY. 


ence ;  and  this  island  saw  itself  again  in  that  free  state  in 
which  the  Roman  arms  had  discovered  it. 

“The  same  firmness  of  character,  and  generosity  of  manners, 
which,  in  general,  distinguished  the  Germans,  were  possessed 
in  an  eminent  degree  by  the  Saxons;  and  while  we  endeavor 
to  unfold  their  political  institutions,  we  must  perpetually  turn 
our  observation  to  that  masterly  picture  in  which  the  Roman 
historian  has  described  these  nations.  In  the  woods  of  Ger¬ 
many  shall  we  find  the  principles  which  directed  the  state  of 
land,  in  the  different  kingdoms  of  Europe;  and  there  shall  we 
find  the  foundation  of  those  ranks  of  men,  and  of  those  civil 
arrangements,  which  the  barbarians  everywhere  established ; 
and  which  the  English  alone  have  had  the  good  fortune,  or 
the  spirit,  to  preserve.”  —  Stuart  on  the  Constitution  of  Eng¬ 
land,  p.  59-61. 

“Kings  they  (the  Germans)  respected  as  the  first  magis¬ 
trates  of  the  state;  but  the  authority  possessed  by  them  was 
narrow  and  limited.”  —  Ditto ,  p.  134. 

“  Did  he,  (the  king.)  at  any  time,  relax  his  activity  and 
martial  ardor,  did  he  employ  his  abilities  to  the  prejudice  of 
his  nation,  or  fancy  he  was  superior  to  the  laws;  the  same 
power  which  raised  him  to  honor,  humbled  and  degraded  him. 
The  customs  and  councils  of  his  country  pointed  out  to  him 
his  duty;  and  if  he  infringed  on  the  former,  or  disobeyed  the 
latter,  a  fierce  people  set  aside  his  authority.  *  *  * 

“His  long  hair  was  the  only  ornament  he  affected,  and 
to  be  foremost  to  attack  an  enemy  was  his  chief  distinction. 
Engaged  in  every  hazardous  expedition,  he  was  a  stranger  to 
repose:  and,  rivalled  by  half  the  heroes  of  his  tribe,  he  could 
obtain  little  power.  Anxious  and  watchful  for  the  public  in¬ 
terest,  he  felt  every  moment  his  dependence,  and  gave  proofs 
of  his  submission. 

“He  attended  the  general  assembly  of  his  nation,  and  was 
allowed  the  privilege  to  harangue  it  first;  but  the  arts  of  per¬ 
suasion,  though  known  and  respected  by  a  rude  people,  were 
unequally  opposed  to  the  prejudices  and  passions  of  men.”  — 
Ditto,  p.  135-6. 

“  The  authority  of  a  Saxon  monarch  was  not  more  consider¬ 
able.  The  Saxons  submitted  not  to  the  arbitrary  rule  of  princes. 
They  administered  an  oath  to  their  sovereigns,  which  bound 
them  to  acknowledge  the  laws,  and  to  defend  the  rights  of  the 
church  and  people ;  and  if  they  forgot  this  obligation,  they 
forfeited  their  office.  In  both  countries,  a  price  was  affixed 
on  kings,  a  fine  expiated  their  murder,  as  well  as  that  of  the 
meanest  citizen ;  and  the  smallest  violation  of  ancient  usage, 


•WEAKNESS  OF  THE  REGAL  AUTHORITY. 


55 


or  the  least  step  towards  tyranny,  was  always  dangerous,  and 
often  fatal  to  them.”  —  Ditto,  p.  139-40. 

£<  They  were  not  allowed  to  impose  taxes  on  the  king¬ 
dom.” —  Ditto ,  p.  146. 

“  Like  the  German  monarchs.  the}'’  deliberated  in  the  general 
assembly  of  the  nation  ;  but  their  legislative  authority  teas  not 
much  respected;  and  their  assent  was  considered  in  no  better 
light  than  as  a  form.  This,  however,  was  their  chief  prerog¬ 
ative;  and  they  employed  it  to  acquire  an  ascendant  in  the 
state.  To  art  and  insinuation  they  turned,  as  their  only  re¬ 
source,  and  flattered  a  people  whom  they  could  not  awe;  but 
address,  and  the  abilities  to  persuade,  were  a  weak  compensa¬ 
tion  for  the  absence  of  real  power. 

“  They  declared  war,  it  is  said,  and  made  peace.  In  both 
cases,  however,  they  acted  as  the  instruments  of  the  state,  and 
put  in  execution  the  resolutions  which  its  councils  had  decreed. 
If,  indeed,  an  enemy  had  invaded  the  kingdom,  and  its  glory 
and  its  safety  were  concerned,  the  great  lords  took  the  field  at 
the  call  of  their  sovereign.  But  had  a  sovereign  declared  war 
against  a  neighboring  state,  without  requiring  their  advice,  or 
if  he  meant  to  revenge  by  arms  an  insult  offered  to  him  by 
a  subject,  a  haughty  and  independent  nobility  refused  their 
assistance.  These  they  considered  as  the  quarrels  of  the 
king,  and  not  of  the  nation  ;  and  in  all  such  emergencies  he 
conib  only  be  assisted  by  his  retainers  and  dependents.”  — 
Ditto .  p.  147-8. 

“Nor  must  we  imagine  that  the  Saxon,  any  more  than  the 
German  monarchs,  succeeded  each  other  in  a  lineal  descent,* 
or  that  they  disposed  of  the  crown  at  their  pleasure.  In  both 
countries,  the  free  election  of  the  people  filled  the  throne;  and 
their  choice  was  the  only  rule  by  which  princes  reigned.  The 
succession,  accordingly,  of  their  kings  was  often  broken  and 
interrupted  and  their  bepositions  were  frequent  and  ground¬ 
less.  The  will  of  a  prince  whom  they  had  long  respected, 
and  the  favor  they  naturally  transferred  to  his  descendant, 
made  them  often  advance  him  to  the  royal  dignity;  but  the 
crown  of  his  ancestor  he  considered  as  the  gift  of  the  people,  and 
neither  expected  nor  claimed  it  as  a  right.”  —  Ditto ,  p.  151-3. 

In  Germany  “  It  was  the  business  of  the  great  to  command 
in  war,  and  in  peace  they  distributed  justice.  *  *  * 


*  “  The  people,  who  in  every  general  council  or  assembly  could  oppose  and  dethrone 
their  sovereigns,  wcro  in  little  dread  of  their  encroachments  on  their  liberties  ;  and 
kings,  who  found  sufficient  employment  in  keeping  possession  of  their  crowns,  would  not 
likely  attack  the  more  important  privileges  of  their  subjects.” 


56 


TRIAL  BY  JURY. 


“  The  princes  in  Germany  were  earls  in  England.  The  great 
contended  in  both  countries  in  the  number  of  their  retainers, 
and  in  that  splendor  and  magnificence  which  are  so  alluring 
to  a  rude  people ;  and  though  they  joined  to  set  bounds  to 
regal  power,  they  were  often  animated  against  each  other 
with  the  fiercest  hatred.  To  a  proud  and  impatient  nobility 
it  seemed  little  and  unsuiting  to  give  or  accept  compositions 
for  the  injuries  they  committed  or  received;  and  their  vassals 
adopting  their  resentment  and  passions,  war  and  bloodshed 
alone  could  terminate  their  quarrels.  What  necessarily  re¬ 
sulted  from  their  situation  in  society,  was  continued  as  a 
privilege ;  and  the  great,  in  both  countries,  made  war,  of  their 
private  authority,  on  their  enemies.  The  Saxon  earls  even 
carried  their  arms  against  their  sovereigns;  and,  surrounded 
with  retainers,  or  secure  in  fortresses  and  castles,  they  despised 
their  resentment,  and  defied  their  power. 

“The  judges  of  the  people,  they  presided  in  both  countries 
in  courts  of  law.*  The  particular  districts  over  which  they 
exerted  their  authority  were  marked  out  in  Germany  by  the 
council  of  the  state;  and  in  England  their  jurisdiction  extend¬ 
ed  over  the  fiefs  and  other  territories  they  possessed.  All 
causes,  both  civil  and  criminal,  were  tried  before  them;  and 
they  judged,  except  in  cases  of  the  utmost  importance,  without 
appeal.  They  were  even  allowed  to  grant  pardon  to  crim¬ 
inals,  and  to  correct  by  their  clemency  the  rigors  of  justice. 
Nor  did  the  sovereign  exercise  any  authority  in  their  lands. 
In  these  his  officers  formed  no  courts,  and  his  writ  was  disre¬ 
garded.  *  *  * 

“  They  had  officers,  as  well  as  the  king,  who  collected  their 
revenues,  and  added  to  their  greatness;  and  the  inhabitants 
of  their  lands  they  distinguished  by  the  name  of  subjects. 

“  But  to  attend  the  general  assembly  of  their  nation  was  the 
chief  prerogative  of  the  German  and  Saxon  princes;  and  as 
they  consulted  the  interest  of  their  country,  and  deliberated 
concerning  matters  of  state,  so  in  the  king's  court ,  of  which 
also  they  were  members,  they  assisted  to  pronounce  judgment 
in  the  complaints  and  appeals  which  were  lodged  in  it.”  — 
Ditto,  p.  158  to  165. 

Henry  says : 

“Nothing  can  be  more  evident  than  this  important  truth; 
that  our  Anglo-Saxon  kings  were  not  absolute  monarchs ;  but 


*  This  office  was  afterwards  committed  to  sheriffs.  But  even  while  the  court  was 
held  by  the  lord,  “the  Lord  was  not  judge,  but  the  Pares  {peers)  only —  Gilbert  on  the 
Gourt  of  Exchequer,  61-2. 


WEAKNESS  OF  THE  REGAL  AUTHORITY. 


57 


that  their  powers  and  prerogatives  were  limited  by  the  laws 
and  customs  of  the  country.  Our  Saxon  ancestors  had  been 
governed  by  limited  monarchs  in  their  native  seats  on  the  con¬ 
tinent;  and  there  is  not  the  least  appearance  or  probability 
that  they  relinquished  their  liberties,  and  submitted  to  absolute 
government  in  their  new  settlements  in  this  island.  It  is  not 
to  be  imagined  that  men,  whose  reigning  passion  was  the  love 
of  liberty,  would  willingly  resign  it;  and  their  new  sover¬ 
eigns,  who  had  been  their  fellow-soldiers,  had  certainly  no 
power  to  compel  them  to  such  a  resignation.” — '3  Henry’s 
History  of  Great  Britain ,  358. 

Mackintosh  says:  “The  Saxon  chiefs,  who  were  called 
kings,  originally  acquired  power  by  the  same  natural  causes 
which  have  gradually,  and  everywhere,  raised  a  few  men 
above  their  fellows.  They  were,  doubtless,  more  experienced, 
more  skilful,  more  brave,  or  more  beautiful,  than  those  who 
followed  them.  *  *  A  king  was  powerful  in  war  by  the 

lustre  of  his  arms,  and  the  obvious  necessity  of  obedience. 
His  influence  in  peace  fluctuated  with  his  personal  character. 
In  the  progress  of  usage  his  power  became  more  fixed  and 
more  limited.  *  *  It  would  be  very  unreasonable  to  sup¬ 

pose  that  the  northern  Germans  who  had  conquered  England, 
had  so  far  changed  their  characteristic  habits  from  the  age  of 
Tacitus,  that  the  victors  became  slaves,  and  that  their  generals 
were  converted  into  tyrants.”  —  Mackintosh’ s  Hist,  of  Eng¬ 
land,  Ch.  2.  45  Larduer’s  Cab.  Cyc.,  73-4. 

Rapin,  in  his  discourse  on  the  “Origin  and  Nature  of  the 
English  Constitution,”  says  : 

“  There  are  but  two  things  the  Saxons  did  not  think  proper 
to  trust  their  kings  with;  for  being  of  like  passions  with  other 
men,  they  might  very  possibly  abuse  them  ;  namely,  the  power 
of  changing  the  laws  enacted  by  consent  of  king  and  people; 
and  the  power  of  raising  taxes  at  pleasure.  From  these  two 
articles  sprung  numberless  branches  concerning  the  liberty  and 
property  of  the  subject,  which  the  king  cannot  touch,  without 
breaking  the  constitution,  and  they  are  the  distinguishing  char¬ 
acter  of  the  English  monarchy.  The  prerogatives  of  the 
crown,  and  the  rights  and  privileges  of  the  people,  flowing 
from  the  two  fore-mentioned  articles,  are  the  ground  of  all  the 
laws  that  from  time  to  time  have  been  made  by  unanimous 
consent  of  king  and  people.  The  English  government  con¬ 
sists  in  the  strict  union  of  the  king’s  prerogatives  with  the 
people’s  liberties.  *  *  But  when  kings  arose,  as  some 

there  were,  that  aimed  at  absolute  power,  by  changing  the 
old,  and  making  new  laws,  at  pleasure;  by  imposing  illegal 


58 


TRIAL  BY  JURY. 


taxes  on  the  people;  this  excellent  government  being,  in  a 
manner,  dissolved  by  these  destructive  measures,  confusion  and 
civil  wars  ensued,  which  some  very  wrongfully  ascribe  to  the 
fickle  and  restless  temper  of  the  English.”  —  Rapin' s  Preface 
to  his  History  of  England. 

Hallam  says  that  among  the  Saxons,  “  the  royal  authority 
was  weak.”  — 2  Middle  Ages ,  403. 

But  although  the  king  himself  had  so  little  authority,  that 
it  cannot  be  supposed  for  a  moment  that  his  laws  were 
regarded  as  imperative  by  the  people,  it  has  nevertheless  been 
claimed,  in  modern  times,  by  some  who  seem  determined  to 
find  or  make  a  precedent  for  the  present  legislative  authority 
of  parliament,  that  his  laws  were  authoritative,  v;hen  assented 
to  by  the  MV itena- gemote,  or  assembly  of  wise  men  —  that  is, 
the  bishops  and  barons.  But  this  assembly  evidently  had  no 
legislative  power  whatever.  The  king  would  occasionally 
invite  the  bishops  and  barons  to  meet  him  for  consultation  on 
public  affairs,  simply  as  a  council ,  and  not  as  a  legislative 
body.  Such  as  saw  fit  to  attend,  did  so.  If  they  were  agreed 
upon  what  ought  to  be  done,  the  king  would  pass  a  law 
accordingly,  and  the  barons  and  bishops  would  then  return 
and  inform  the  people  orally  what  laws  had  been  passed,  and 
use  their  influence  with  them  to  induce  them  to  conform  to 
the  law  of  the  king,  and  the  recommendation  of  the  council. 
And  the  people  no  doubt  were  much  more  likely  to  accept  a 
law  of  the  king,  if  it  had  been  approved  by  this  council,  than 
if  it  had  not.  But  it  was  still  only  a  law  of  the  king,  which 
they  obeyed  or  disregarded  according  to  their  own  notions  of 
expediency.  The  numbers  who  usually  attended  this  coun¬ 
cil  were  too  small  to  admit  of  the  supposition  that  they  had 
any  legislative  authority  whatever,  to  impose  laws  upon  the 
people  against  their  will. 

Lingard  says  : 

“It  was  necessary  that  the  king  should  obtain  the  assent  of 
these  (the  members  of  the  Witena-gemotes)  to  all  legislative 
enactments;  because  without  their  acquiescence  and  support ,  it 
was  impossible  to  carry  them  into  execution.  To  many  char¬ 
ters  (laws)  we  have  the  signatures  of  the  Witan.  They  sel¬ 
dom  exceed  thirty  in  number  ;  they  never  amount  to  sixty.”  — 
1  Lingard ,  4S6. 


WEAKNESS  OF  THE  REGAL  AUTHORITY. 


59 


It  is  ridiculous  to  suppose  that  the  assent  of  such  an  assem¬ 
bly  gave  any  authority  to  the  laws  of  the  king,  or  had  any 
influence  in  securing  obedience  to  them,  otherwise  than  by¬ 
way  of  persuasion.  If  this  body  had  had  any  real  legislative 
authority,  such  as  is  accorded  to  legislative  bodies  of  the 
present  day,  they  would  have  made  themselves  at  once  the 
most  conspicuous  portion  of  the  government,  and  would  have 
left  behind  them  abundant  evidence  of  their  power,  instead  of 
the  evidence  simply  of  their  assent  to  a  few  laws  passed  by 
the  king. 

More  than  this.  If  this  body  had  had  any  real  legislative 
authority,  they  would  have  constituted  an  aristocracy,  having, 
in  conjunction  with  the  king,  absolute  power  over  the  people. 
Assembling  voluntarily,  merely  on  the  invitation  of  the  king; 
deputed  by  nobody  but  themselves;  representing  nobody  but 
themselves;  responsible  to  nobody  but  themselves ;  their  legis¬ 
lative  authority,  if  they  had  had  any,  would  of  necessity  have 
made  the  government  the  government  of  an  aristocracy 
merely,  and  the  people  slaves,  of  course.  And  this  would 
necessarily  have  been  the  picture  that  history  would  have 
given  us  of  the  Anglo-Saxon  government,  and  of  Anglo-Sax¬ 
on  liberty. 

The  fact  that  the  people  had  no  representation  in  this  assem¬ 
bly,  and  the  further  fact  that,  through  their  juries  alone,  they 
nevertheless  maintained  that  noble  freedom,  the  very  tradition 
of  which  (after  the  substance  of  the  thing  itself  has  ceased 
to  exist)  has  constituted  the  greatest  pride  and  glory  of  the 
nation  to  this  day,  prove  that  this  assembly  exercised  no 
authority  which  juries  of  the  people  acknowledged,  except  at 
their  own  discretion.* 


*  The  opinion  expressed  in  the  text,  that  the  Witan  had  no  legislative  authority,  is 
corroborated  by  the  following  authorities  : 

“  From  the  fact  that  the  new  laws  passed  by  the  king  and  the  Witan  were  laid  before 
the  shire-mote,  (county  court,)  we  should  be  almost  justified  in  the  inference  that  a 
second  sanction  was  necessary  before  they  could  have  the  effect  of  law  in  that  particular 
county.”  —  Dunham's  Middle  Ages,  Sec.  2,  B.  2,  Ch.  1.  57  Lardmr’s  Cab.  Cyc.,  53. 

The  “ second  sanction  ”  required  to  give  the  legislation  of  the  king  and  Witan  the 
effect  of  law,  was  undoubtedly,  I  think,  as  a  general  thing,  the  sanction  of  a  jury.  I 
know  of  no  evidence  whatever  that  laws  were  ever  submitted  to  popular  vote  in  the 
oounty  courts,  as  this  author  seems  to  suppose  possible.  Another  mode,  sometimes  re- 


60 


TRIAL  BY  JURY. 


There  is  not  a  more  palpable  truth,  in  the  history  of  the 
Anglo-Saxon  government,  than  that  stated  in  the  Introduction 
to  Gilbert’s  History  of  the  Common  Pleas,* *  viz.,  11  that  the 
County  and  Hundred  Courts,”  (to  which  should  have  been 
added  the  other  courts  in  which  juries  sat,  the  courts-baron 
and  court-leet,)  “  in  those  times  were  the  real  and  only  Parlia¬ 
ments  of  the  kingdom.”  And  why  were  they  the  real  and 
only  parliaments  of  the  kingdom?  Solely  because,  as  will 
be  hereafter  shown,  the  juries  in  those  courts  tried  causes  on 
their  intrinsic  merits,  according  to  their  own  ideas  of  justice, 
irrespective  of  the  laws  agreed  upon  by  kings,  priests,  and 
barons;  and  whatever  principles  they  uniformly,  or  perhaps 
generally,  enforced,  and  none  others ,  became  practically  the 
law  of  the  land  as  matter  of  course. j- 

Finally,  on  this  point.  Conclusive  proof  that  the  legisla¬ 
tion  of  the  king  was  of  little  or  no  authority,  is  found  in  the 
fact  that  the  kings  enacted  so  few  laws.  If  their  laws  had 
been  received  as  authoritative,  in  the  manner  that  legislative 
enactments  are  at  this  day,  they  would  have  been  making 
laws  continually.  Yet  the  codes  of  the  most  celebrated  kings 
are  very  small,  and  were  little  more  than  compilations  of  im¬ 
memorial  customs.  The  code  of  Alfred  would  not  fill  twelve 


sorted  to  for  obtaining  the  sanction  of  the  people  to  the  laws  of  the  Witan,  was, 
it  seems,  to  persuade  the  people  themselves  to  swear  to  observe  them.  Mackintosh 
says  : 

“  The  preambles  of  the  laws  (of  the  Witan)  speak  of  the  infinite  number  of  liege¬ 
men  who  attended,  as  only  applauding  the  measures  of  the  assembly.  But  this 
applause  was  neither  so  unimportant  to  the  success  of  the  measures,  nor  so  precisely 
distinguished  from  a  share  in  legislation,  as  those  who  read  history  with  a  modern  eye 
might  imagine.  It  appears  that  under  Athelstan  expedients  were  resorted  to,  to 
obtain  a  consent  to  the  law  from  great  bodies  of  the  people  in  their  districts,  which  their 
numbers  rendered  impossible  in  a  national  assembly.  That  monarch  appears  to  have 
sent  commissioners  to  hold  shire-gemotes  or  county  meetings,  where  they  proclaimed  the 
laws  made  by  the  king  and  his  counsellors,  which,  being  acknowledged  and  sworn  to  at 
these  folk-motes  (meetings  of  the  people)  became,  by  their  assent,  completely  binding 
on  the  whole  nation.”  —  Mackintosh’s  Hist,  of  England,  Ch.  2.  45  Lardner’s  Cab. 

Cyc.,  75. 

*  Page  31. 

t  Hallam  says,  “  It  was,  however,  to  the  county  court  that  an  English  freeman  chiefly 
looked  for  the  maintenance  of  his  civil  rights.”  —  2  Middle  Ages,  392. 

Also,  “  This  (the  county  court)  was  the  great  constitutional  judicature  in  all  ques¬ 
tions  of  civil  right.”  —  Ditto,  395. 

Also,  “  The  liberties  of  these  Anglo-Saxon  thanes  were  chiefly  secured,  next  to  their 
swords  and  their  free  spirits,  by  the  inestimable  right  of  deciding  civil  and  criminal 
suits  in  their  own  county  courts.”  —  Ditto,  399. 


WEAKNESS  OF  THE  REGAL  AUTHORiTY. 


61 


pages  of  the  statute  book  of  Massachusetts,  and  was  little  or 
nothing  else  than  a  compilation  of  the  laws  of  Moses,  and  the 
Saxon  customs,  evidently  collected  from  considerations  of  con¬ 
venience,  rather  than  enacted  on  the  principle  of  authority. 
The  code  of  Edward  the  Confessor  would  not  fill  twenty 
pages  of  the  statute  book  of  Massachusetts,  and,  says  Black- 
stone,  “seems  to  have  been  no  more  than  a  new  edition,  or 
fresh  promulgation  of  Alfred’s  code,  or  dome-book ,  with  such 
additions  and  improvements  as  the  experience  of  a  century 
and  a  half  suggested.”  —  1  Blackstone,  66.* 


*  “  Alfred  may,  in  one  sense,  be  called  the  founder  of  these  laws,  (the  Saxon,)  for 
until  his  time  they  were  an  unwritten  code,  but  he  expressly  says,  ‘  that  I,  Alfred,  col¬ 
lected  the  good  laws  of  our  forefathers  into  one  code,  and  also  1  wrote  them  down  ’ — which  is 
a  decisive  fact  in  the  history  of  our  laws  well  worth  noting.”  —  Introduction  to  Gilbert’s 
History  of  the  Common  Pleas,  p.  2,  note. 

Kelhain  says,  “  Let  us  consult  our  own  lawyers  and  historians,  and  they  will  tell  ns 
*  *  that  Alfred,  Edgar,  and  Edward  the  Confessor,  were  the  great  compilers  and 

restorers  of  the  English  Laws.”  —  Kelham’s  Preliminary  Discourse  to  the  Laws  of  Wil¬ 
liam  the  Conqueror,  p.  12.  Appendix  to  Kelham’s  Dictionary  of  the  Norman  Language. 

“He  (Alfred)  also,  like  another  Theodosius,  collected  the  various  customs  that  he  found 
dispersed  in  the  kingdom,  and  reduced  and  digested  them  into  one  uniform  system,  or 
code  of  laws,  in  his  som-bec,  or  liber  judicialis  (judicial  book).  This  ho  compiled  for  the 
use  of  the  court  baron,  hundred  and  county  court,  the  court-leet  and  sheriff’s  tourn, 
tribunals  which  he  established  for  the  trial  of  all  causes,  civil  and  criminal,  in  the  very 
districts  wherein  the  complaints  arose.”  —  4  Blackstone,  411. 

Alfred  himself  says,  “Hence  I,  King  Alfred,  gathered  these  together,  and  com¬ 
manded  many  of  those  to  be  written  down  which  our  forefathers  observed  —  those  which 
I  liked  —  and  those  which  I  did  not  like,  by  the  advice  of  my  Witan,  I  threw  aside. 
For  I  durst  not  venture  to  set  down  in  writing  over  many  of  my  own,  since  1  knew  not  what 
among  them  would  please  those  that  should  come  after  us.  But  those  which  I  met  with 
either  of  the  days  of  me,  my  kinsman,  or  of  Offa,  King  of  Mercia,  or  of  iEthelbert, 
who  was  the  first  of  the  English  who  received  baptism  —  those  which  appeared  to  mo 
the  justest  —  I  have  here  collected,  and  abandoned  the  others.  Then  I,  Alfred,  King  of 
the  West  Saxons,  showed  these  to  all  my  Witan,  and  they  then  said  that  they  were 
all  willing  to  observe  them.”  —  Laws  of  Alfred,  translated  by  II.  Price,  prefixed  to 
Mackintosh’s  History  of  England,  vol.  1.  45  Lardner’s  Cab.  Cyc. 

“  King  Edward  *  *  projected  and  begun  what  his  grandson,  King  Edward  the  Con¬ 
fessor,  afterwards  completed,  viz.,  one  uniform  digest  or  body  of  laws  to  be  observed 
throughout  the  whole  kingdom,  being  probably  no  more  than  a  revival  of  King  Alfred’s 
code,  with  some  improvements  suggested  by  necessity  and  experience,  particularly  the 
incorporating  some  of  the  British,  or,  rather,  Mercian  customs,  and  also  such  of  the 
Danish  (customs)  as  were  reasonable  and  approved,  into  the  West  Saxon  Lage,  which 
■was  still  tho  ground-work  of  the  whole.  And  this  appears  to  bo  the  best  supported  and 
most  plausible  conjecture,  (for  certainty  is  not  to  be  expected,)  of  the  rise  and  original 
of  that  admirable  system  of  maxims  and  unwritten  customs  which  is  now  known  by  the 
6 


62 


TRIAL  BY  JURY. 


The  Code  of  William  the  Conqueror  would  fill  less  than 
seven  pages  of  the  statute  book  of  Massachusetts;  and  most 
of  the  laws  contained  in  it  are  taken  from  the  laws  of  the  pre¬ 
ceding  kings,  and  especially  of  Edward  the  Confessor  (whose 
laws  William  swore  to-  observe);  but  few  of  his  own  being 
added. 

The  codes  of  the  other  Saxon  and  Norman  kings  were,  as  a 
general  rule,  less  voluminous  even  than  these  that  have  been, 
named;  and  probably  did  not  exceed  them  in  originality,  f 
The  Norman  princes,  from  William  the  Conqueror  to  John,  1 
think  without  exception,  bound  themselves,  and,  in  order  to 
maintain  their  thrones,  were  obliged  to  bind  themselves,  to 
observe  the  ancient  laws  and  customs,  in  other  words,  the 
“  lex  terrai ,”  or  “  common  law  ”  of  the  kingdom.  Even 
Magna  Carta  contains  hardly  anything  other  than  this  same 
“  common  law,"  with  some  new  securities  for  its  observance. 


name  of  the  common  law ,  as  extending  its  authority  universally  ever  all  the  realm,  andS 
■which  is  doubtless  of  Saxon  parentage.”  —  4  Blackstone,  412. 

“  By  the  Lex  Terra  and  Lex  Regni  is  understood  the  laws  of  Edward  the  Confessor,, 
confirmed  and  enlarged  as  they  were  by  William  the  Conqueror;  and  this  Constitution, 
or  Code  of  Laws  is  what  even  to  this  day  are  called  ‘  The  Common  Law  of  the  Land.’ ’” 
—  Introduction  to  Gilbert’s  History  of  the  Common  Pleas,  p.  22,  note . 

*Not  the  conqueror  of  the  English  people,,  (as  the  friends  of  liberty  maintain,)  but 
only  of  Harold  the  usurper.  —  See  Hale’s  History  of  the  Common  Law,  ch.  5. 

f  For  all  these  codes  see  Wilkins’  Laws  of  the  Anglo-Saxons. 

“  Being  regulations  adapted  to  existing  institutions,  the  Anglo-Saxon  statutes  are' 
concise  and  technical,,  alluding  to  the  law  which  was  then  living  and  in  vigor,  rather 
than  defining  it.  The  same  clauses  and  chapters  are  often  repeated  word  for  word,  in, 
the  statutes  of  subsequent  kings,  showing  that  enactments  which  bear  the  appearance 
of  novelty  are  merely  declaratory.  Consequently  the  appearance  of  a  law,,  seemingly 
for  the  first  time,  is  by  no  means  to  bo  considered  as  a  proof  that  the  matter  which  it, 
contains  is  new;  nor  can  we  trace  the  progress  of  the  Anglo-Saxon  institutions  with  any 
degree  of  certainty,  by  following  the  dates  of  the  statutes  in  which  we  find  them  first 
noticed.  All  arguments  founded  on  the  apparent  chronology  of  the  subjects  included 
in  the  laws,  are  liable  to  great  fallacies.  Furthermore,  a  considerable  portion  of  tho 
Anglo-Saxon  law  was  never  recorded  in  writing.  There  can  be  no  doubt  but  that  the 
rules  of  inheritance  were  well  established  and  defined  ;  yet  we  have  not  a  single  law, 
and  hardly  a  single  document  from  which  the  course  of  the  descent  of  land  can  be  in¬ 
ferred. *  *  *  Positive  proof  cannot  be  obtained  of  the  commencement  of  any  institu¬ 

tion,  because  the  first  written  law  relating  to  it  may  posssibly  be  merely  confirmatory  or 
declaratory ;  neither  can  the  non-existence  of  any  institution  be  inferred  from  tho  ab¬ 
sence  of  direct  evidence.  Written  laws  were  modified  and  controlled  by  customs  of 
which  no  trace  can  be  discovered,  until  after  the  lapse  of  centuries,  although  those 
usages  must  have  been  in  constant  vigor  during  the  long  interval  of  silence,”  —  1  Pal- 
grave’s  Rise  and  Progress  of  the  English  Commonwealth,  58-9. 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE.  63 


How  is  this  abstinence  from  legislation,  on  the  part  of  the 
ancient  kings,  to  be  accounted  for,  except  on  the  supposition 
■that  the  people  would  accept,  and  juries  enforce,  few  or  no 
new  laws  enacted  by  their  kings']  Plainly  it  can  be  accounted 
for  in  no  other  way.  In  fact,  all  history  informs  us  that 
anciently  the  attempts  of  the  kings  to  introduce  or  establish 
new  laws,  met  with  determined  resistance  from  the  people, 
and  generally  resulted  in  failure.  u  Nolumus  Leges  Anglice 
mutari ,”  (we  will  that  the  laws  of  England  be  not  changed,) 
was  a  determined  principle  with  the  Anglo-Saxons,  from 
which  they  seldom  departed,  up  to  the  time  of  Magna  Carta, 
and  indeed  until  long  after.* 


•section  IT. 

The  Ancient  Common  Law  Juries  were  mere  Courts  of 

Conscience. 

But  it  is  in  the  administration  of  justice,  or  of  law,  that  the 
freedom  or  subjection  of  a  people  is  tested.  If  this  administra¬ 
tion  be  in  accordance  with  the  arbitrary  will  of  the  legislator — 
that  is,  if  his  will,  as  it  appears  in  his  statutes,  be  the  highest 
rule  of  decision  known  to  the  judicial  tribunals,  — the  govern¬ 
ment  is  a  despotism,  and  the  people  are  slaves.  If,  on  the 
■other  hand,  the  rule  of  decision  be  those  principles  of  natural 
equity  and  justice,  which  constitute,  or  at  least  are  embodied 
in,  the  general  conscience  of  mankind,  the  people  are  free  in 
just  so  far  as  that  conscience  is  enlightened. 

That  the  authority  of  the  king  was  of  little  weight  with  the 
judicial  tribunals ,  must  necessarily  be  inferred  from  the  fact 
already  stated,  that  his  authority  over  the  people  was  but 
weak.  If  the  authority  of  his  laws  had  been  paramount  in 
the  judicial  tribunals,  it  would  have  been  paramount  with  the 
people,  of  course;  because  they  would  have  had  no  alternative 


*  Rapin  says,  “  The  customs  now  practised  in  England  are,  for  the  most  part,  the 
came  as  the  Anglo-Saxons  brought  with  them  from  Germany.”  —  Rapin' s  Dissertation 
on  the  Government  of  the  Anglo-Saxons,  vol.  2,  Oct.  Ed.,  p.  138.  See  Kelkam’s  Dis¬ 
course  before  named. 


64 


TRIAL  BY  JURY. 


but  submission.  The  fact,  then,  that  his  laws  were  not  au¬ 
thoritative  with  the  people,  is  proof  that  they  were  not  author¬ 
itative  with  the  tribunals  —  in  other  words,  that  they  were  not, 
as  matter  of  course,  enforced  by  the  tribunals. 

But  we  have  additional  evidence  that,  up  to  the  time  of 
Magna  Carta,  the  laws  of  the  king  were  not  binding  upon  the 
judicial  tribunals;  and  if  they  were  not  binding  before  that 
time,  they  certainly  were  not  afterwards,  as  has  already  been 
shown  from  Magna  Carta  itself.  It  is  manifest  from  all  the 
accounts  we  have  of  the  courts  in  which  juries  sat,  prior  to> 
Magna  Carta,  such  as  the  court-baron,  the  hundred  court,  the 
court-leet,  and  the  county  court,  that  they  were  mere  courts  of 
conscience ,  and  that  the  juries  were  the  judges,  deciding  causes 
according  to  their  own  notions  of  equity,  and  not  according  to 
any  laws  of  the  king,  un  less  they  thought  them  just. 

These  courts,  it  must  be  considered,  were  very  numerous, 
and  held  very  frequent  sessions.  There  were  probably  seven, 
eight,  or  nine  hundred  courts  amonth ,  in  the  kingdom;  the  ob¬ 
ject  being,  as  Blackstone  says,  “  to  bring  justice  home  to  every 
man's  door."  (3  Blackstone,  30.)  The  number  of  the  county 
courts,  of  course,  corresponded  to  the  number  of  counties,  (36.) 
The  court-leet  was  the  criminal  court  for  a  district  less  than  a 
county.  The  hundred  court  was  the  court  for  one  of  those 
districts  anciently  called  a  hundred ,  because,  at  the  time  of 
their  first  organization  for  judicial  purposes,  they  comprised 
(as  is  supposed)  but  a  hundred  families.*  The  court-baron 
was  the  court  for  a  single  manor,  and  there  was  a  court  for 
every  manor  in  the  kingdom.  All  these  courts  were  holden 
as  often  as  once  in  three  or  five  weeks;  the  county  court  once 
a  month.  The  king’s  judges  were  present  at  none  of  these 
courts;  the  only  officers  in  attendance  being  sheriffs,  bailiffs, 
and  stewards,  merely  ministerial,  and  not  judicial,  officers; 
doubtless  incompetent,  and,  if  not  incompetent,  untrustworthy, 
for  giving  the  juries  any  reliable  information  in  matters  of 
law,  beyond  what  was  already  known  to  the  jurors  themselves. 


*  Hallam  says,  “The  county  of  Sussex  contains  sixty-five  (‘hundreds’)  ;  that  of 
Dorset  forty -three  ;  while  Yorkshire  has  only  twenty-six  ;  and  Lancashire  but  six.”  — 
2  Middle  Ages ,  391. 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE.  65 


And  yet  these  were  the  courts,  in  which  was  done  all  the 
judicial  business,  both  civil  and  criminal,  of  the  nation,  except 
appeals,  and  some  of  the  more  important  and  difficult  cases.* 
It  is  plain  that  the  juries,  in  these  courts,  must,  of  necessity, 
have  been  the  sole  judges  of  all  matters  of  law  whatsoever; 
because  there  was  no  one  present,  but  sheriffs,  bailiffs,  and 
stewards,  to  give  them  any  instructions;  and  surely  it  will  not 
be  pretended  that  the  jurors  were  bound  to  take  their  law  from 
such  sources  as  these. 

In  the  second  place,  it  is  manifest  that  the  principles  of  law, 
by  which  the  juries  determined  causes,  were,  as  a  general 
rule,  nothing  else  than  their  own  ideas  of  natural  equity,  and 
not  any  laws  of  the  king ;  because  but  few  laws  were  enacted, 
and  many  of  those  were  not  written,  but  only  agreed  upon  in 
council-!  Of  those  that  were  written,  few  copies  only  were 
made,  (printing  being  then  unknown,)  and  not  enough  to 
supply  all,  or  any  considerable  number,  of  these  numerous 
courts.  Beside  and  beyond  all  this,  few  or  none  of  the  jurors 
could  have  read  the  laws,  if  they  had  been  written ;  because 
few  or  none  of  the  common  people  could,  at  that  time,  read. 
Not  only  were  the  common  people  unable  to  read  their  own 
language,  but,  at  the  time  of  Magna  Carta,  the  laws  were 
written  in  Latin,  a  language  that  could  be  read  by  few  persons 
except  the  priests,  who  were  also  the  lawyers  of  the  nation. 
Mackintosh  says,  “the  first  act  of  the  Mouse  of  Commons 
composed  and  recorded  in  the  English  tongue,”  was  in  1415, 
two  centuries  after  Magna  Carta.!  Up  to  this  time,  and  for 
some  seventy  years  later,  the  laws  were  generally  written 


*  Excepting  a! so  matters  pertaining  to  the  collection  of  the  revenue,  which  were  de¬ 
termined  in  the  king’s  court  of  exchequer.  But  even  in  this  court  it  was  the  law  “  that 
none  he  amerced  but  by  his  peers.”  —  Mirror  of  Justices,  49. 

t  “  For  the  English  laws,  although  not  written. ,  may,  as  it  should  seem,  and  that  with¬ 
out  any  absurdity,  be  termed  laws,  (since  this  itself  is  law  —  that  which  pleases  the 
prince  has  the  force  of  law,)  I  mean  those  laws  which  it  is  evident  were  promulgated 
by  the  advice  of  the  nobles  and  the  authority  of  the  prince,  concerning  doubts  to  be 
settled  in  their  assembly.  For  if  from  the  mere  want  of  writing  only,  they  should  not 
>be  considered  laws,  then,  unquestionably,  writing  would  seem  to  confer  more  authority 
upon  laws  themselves,  than  either  the  equity  of  the  persons  constituting,  or  the  reason 
of  those  framing  them.”  —  Glanville's  Preface,  p.  38.  (Glanville  was  chief  justice  of 
Henry  II.,  1180.)  2  Turner's  History  of  the  Anglo-Saxons,  280. 

Mackintosh’s  History  of  England,  eh.  3.  Lardncr’s  Cabinet  Cyclopaedia,  266. 

•  6* 


66 


TRIAL  BY  JURY. 


either  in  Latin  or  French  ;  both  languages  incapable  of  being 
read  by  the  common  people,  as  well  Normans  as  Saxons ;  and 
one  of  them,  the  Latin,  not  only  incapable  of  being  read 
by  them,  but  of  being  even  understood  when  it  was  heard 
by  them. 

To  suppose  that  the  people  were  bound  to  obey,  and  juries 
to  enforce,  laws,  many  of  which  were  unwritten,  none  of 
which  they  could  read,  and  the  larger  part  of  which  (those 
written  in  Latin)  they  could  not  translate,  or  understand  when 
they  heard  them  read,  is  equivalent  to  supposing  the  nation 
sunk  in  the  most  degrading  slavery,  instead  of  enjoying  a 
liberty  of  their  own  choosing. 

Their  knowledge  of  the  laws  passed  by  the  king  was,  of 
course,  derived  only  from  oral  information;  and  “ the  good 
laws ,”  as  some  of  them  were  called,  in  contradistinction  to 
others  —  those  which  the  people  at  large  esteemed  to  be  good 
laws  —  were  doubtless  enforced  by  the  juries,  and  the  others, 
as  a  general  thing,  disregarded.* 

That  such  was  the  nature  of  judicial  proceedings,  and  of 
the  power  of  juries,  up  to  the  time  of  Magna  Carta,  is  further 
shown  by  the  following  authorities. 

“The  sheriffs  and  bailiffs  caused  fhe  free  tenants  of  their 
bailiwics  to  meet  at  their  counties  and  hundreds;  at  ivhich 
justice  was  so  done ,  that  every  one  so  judged  his  neighbor  by 
such  judgment  as  a  man  could  not  elsewhere  receive  in  the  like 
cases,  until  such  times  as  the  customs  of  the  realm  were  put 
in  writing,  and  certainly  published. 

“  And  although  a  freeman  commonly  was  not  to  serve  (as  a 
juror  or  judge)  without  his  assent,  nevertheless  it  was  assented 
unto  that  free  tenants  should  meet  together  in  the  counties 
and  hundreds,  and  lords  courts,  if  they  were  not  specially 
exempted  to  do  such  suits,  and  there  judged  their  neighbors 
—  Mirror  of  Justices ,  p.  7,  8. 


*  If  the  laws  of  the  king  were  received  as  authoritative  by  the  juries,  what  occasion 
was  there  for  his  appointing  special  commissioners  for  the  trial  of  offences,  without  the 
intervention  of  a  jury,  as  ho  frequently  did,  in  manifest  and  acknowledged  violation  of 
Magna  Carta,  and  “  the  law  of  the  land  t  ”  These  appointments  were  undoubtedly 
made  for  no  other  reason  than  that  the  juries  were  not  sufficiently  subservient,  but 
judged  according  to  their  own  notions  of  right,  instead  of  the  will  of  the  king  —  whether 
the  latter  were  expressed  in  his  statutes,  or  by  his  judges. 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE.  67 


Gilbert,  in  his  treatise  on  the  Constitution  of  England,  says: 

“In  the  county  courts,  if  the  debt  was  above  forty  shillings, 
there  issued  a  justicies  (a  commission)  to  the  sheriff,  to  enable 
him  to  hold  such  a  plea,  where  the  suitors  ( jurors' )  are  judges 
of  the  law  and  fact.”  —  Gilbert's  Cases  in  Law  and  Equity , 
Spc.,  6pc.,  456. 

All  the  ancient  writs,  given  in  Glanville,  for  summoning 
jurors,  indicate  that  the  jurors  judged  of  everything,  on  their 
consciences  only.  The  writs  are  in  this  form : 

“Summon  twelve  free  and  legal  men  (or  sometimes  twelve 
knights)  to  be  in  court,  prepared  upon  their  oaths  to  declare 
whether  A  or  B  have  the  greater  right  to  the  land  (or  other 
thing')  in  question.”  See  Writs  in  Beames’  Glanville,  p.  54 
to  70,  and  233-306  to  332. 

Crabbe,  speaking  of  the  time  of  Henry  I.,  (1100  to  1135,) 
recognizes  the  fact  that  the  jurors  were  the  judges.  He  says : 

“  By  one  law,  every  one  was  to  be  tried  by  his  peers,  who 
were  of  the  same  neighborhood  as  himself.  *  *  By  another 
law,  the  judges,  for  so  the  jury  were  called ,  were  to  be  chosen 
by  the  party  impleaded,  after  the  manner  of  the  Danish  nem- 
bas ;  by  which,  probably,  is  to  be  understood  that  the  defend¬ 
ant  had  the  liberty  of  taking  exceptions  to,  or  challenging  the 
jury,  as  it  was  afterwards  called.”  —  Crabbe' s  History  of  the 
English  Law ,  p.  55. 

Reeve  says : 

“The  great  court  for  civil  business  was  the  county  court ; 
held  once  every  four  weeks.  Here  the  sheriff  presided ;  but 
the  suitors  of  the  court ,  as  they  were  called,  that  is,  the  freemen 
or  landholders  of  the  county,  were  the  judges  ;  and  the  sheriff 
was  to  execute  the  judgment.  *  *  * 

“  The  hundred  court  was  held  before  some  bailiff ;  the  leet 
before  the  lord  of  the  manor’s  steward,  f  *  * 

“Out  of  the  county  court  was  derived  an  inferior  court  of 
civil  jurisdiction,  called  the  court-baron.  This  was  held  from 
three  weeks  to  three  weeks,  and  ivas  in  every  respect  like  the 
county  court;”  ( that  is,  the  jurors  were  judges  in  it;)  “only 
the  lord  to  whom  this  franchise  was  granted,  or  his  steward, 


•f-  Of  course,  Mr.  Reeve  means  to  be  understood  that,  in  the  hundred  court,  and  court- 
leet,  the  jurors  were  the  judges,  as  he  declares  them  to  have  been  in  the  county  court ; 
otherwise  the  “  bailiff”  or  “  steward  ”  must  have  been  judge. 


68 


TRIAL  BY  JURY. 


■presided  instead  of  the  sheriff.”  —  1  Reeve’s  History  of  the 
English  Law ,  p.  7. 

Chief  Baron  Gilbert  says: 

“  Besides  the  tenants  of  the  king,  which  held  per  baroniam , 
(by  the  right  of  a  baron,)  and  did  suit  and  service  (served  as 
judges)  at  his  own  court;  aud  the  burghers  aud  tenants  in 
ancient  demesne,  that  did  suit  and  service  (served  as  jurors 
or  judges)  in  their  own  court  in  person,  and  in  the  king’s  by 
proxy,  there  was  also  a  set  of  freeholders,  that  did  suit  and 
service  (served  as  jurors)  at  the  county  court.  These  were 
such  as  anciently  held  of  the  lord  of  the  county,  and  by  the 
escheats  of  earldoms  had  fallen  to  the  king;  or  such  as  were 
granted  out  by  service  to  hold  of  the  king,  but  with  particular 
reservation  to  do  suit  and  service  (serve  as  jurors)  before  the 
king’s  bailiff;  because  it  was  necessary  the  sheriff ,  or  bailiff  of 
the  king,  should  have  suitors  ( jurors )  at  the  county  court ,  that 
the  business  might  be  despatched.  These  suitors  are  the  pares 
{peers')  of  the  county  court ,  and  indeed  the  judges  of  it ;  as  the 
pares  (  peers)  were  the  judges  in  every  court-baron  ;  and  there¬ 
fore  the  king’s  bailiff  having  a  court  before  him,  there  must 
be,  pares  or  judges,  for  the  sheriff  himself  is  not  a  judge-,  and 
though  the  style  of  the  court  is  Curia  prima  Comitatus  E.  C. 
M Hit,. ’  vicecom'  Comitaf  prccd ’  Tent1  apud  B.,  &c.  (First 
Court  of  the  county,  E.  C.  knight,  sheriff  of  the  aforesaid 
county,  held  at  B.,  &c.) ;  by  which  it  appears  that  the  court 
was  the  sheriff’s;  yet,  by  the  old  feudal  constitutions,  the  lord 
was  not  judge,  but  the  pares  {peers')  only ;  so  that,  even  in  a 
juslicies,  which  was  a  commission  to  the  sheriff  to  hold  plea 
of  more  than  was  allowed  by  the  natural  jurisdiction  of  a 
county  court,  tire  pares  {peers,  jurors')  only  were  judges,  and 
not  the  sheriff ;  because  it  was  to  hold  plea  in  the  same  manner 
as  they  used  to  do  in  that  (the  lord’s)  court.”  —  Gilbert  on  the 
Court  of  Exchequer ,  ch.  5,  p.  61-2. 

“  It  is  a  distinguishing  feature  of  the  feudal  system,  to  make 
civil  jurisdiction  necessarily,  and  criminal  jurisdiction  ordina¬ 
rily,  coextensive  with  tenure;  and  accordingly  there  is  insepa¬ 
rably  incident  to  every  manor  a  court-baron  (curia  baronum), 
being  a  court  in  which  the  freeholders  of  the  manor  are  the  sole 
judges,  but  in  which  the  lord,  by  himself,  or  more  commonly  by 
his  steward,  presides.”  —  Political  Dictionary,  word  Manor. 

The  same  work,  speaking  of  the  county  court,  says :  “  The 
judges  were  the  freeholders  who  did  suit  to  the  court.”  See 
word  Courts. 

“In  the  case  of  freeholders  attending  as  suitors,  the  county 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE.  69 


court  or  court-baron,  (as  in  the  case  of  the  ancient  tenants  per 
baroniam  attending  Parliament,)  the  suitors  are  the  judges  of 
the  court ,  both  for  law  and  for  fact,  and  the  sheriff  or  the  under 
sheriff  in  the  county  court,  and  the  lord  or  his  steward  in  the 
court-baron,  are  only  presiding  officers,  with  no  judicial  au¬ 
thority .” —  Political  Dictionary ,  word  Suit. 

“Court,  (curtis,  curia  aula)  ;  the  space  enclosed  by  the  walls 
of  a  feudal  residence,  in  which  the  followers  of  a  lord  used  to 
assemble  in  the  middle  ages,  to  administer  justice,  and  decide 
respecting  affairs  of  common  interest,  &c.  It  was  next  used 
for  those  who  stood  in  immediate  connexion  with  the  lord  and 
master,  the  pares  curia},  (peers  of  the  court,)  the  limited  portion 
of  the  general  assembly,  to  which  was  entrusted  the  pronounc¬ 
ing  of  judgment,”  &c. — Encyclopedia  Americana,  word  Court. 

“  In  court-barons  or  county  courts  the  steward  was  not 
judge,  but  the  pares  (peers,  jurors') ;  nor  was  the  speaker 
in  the  House  of  Lords  judge,  but  the  barons  only.”  —  Gilbert 
on  the  Court  of  Exchequer,  ch.  3,  p.  42. 

Crabbe,  speaking  of  the  Saxon  times,  says: 

“  The  sheriff  presided  at  the  hundred,  court,  *  *  and  some¬ 
times  sat  in  the  place  of  the  alderman  (earl)  in  the  county 
court .”  —  Crabbe,  23. 

The  sheriff  afterwards  became  the  sole  presiding  officer  of 
the  county  court. 

Sir  Thomas  Smith,  Secretary  of  State  to  Queen  Elizabeth, 
writing  more  than  three  hundred  years  after  Magna  Carta,  in 
describing  the  difference  between  the  Civil  Law  and  the  Eng¬ 
lish  Law,  says : 

“  Judex  is  of  us  called  Judge,  but  our  fashion  is  so  divers, 
that  they  which  give  the  deadly  stroke,  and  either  condemn 
or  acquit  the  man  for  guilty  or  not  guilty,  are  not  called  judges, 
but  the  twelve  men.  And  the  same  order  as  well  in  civil  mat¬ 
ters  and  pecuniary,  as  in  matters  criminal.”  —  Smith’s  Com- 
momoeallh  of  England,  ch.  9,  p.  53,  Edition  of  1621. 

Court-Leet.  “  That  the  leet  is  the  most  ancient  court  in  the 
land  for  criminal  matters,  (the  court-baron  being  of  no  less 
antiquity  in  civil.)  has  been  pronounced  by  the  highest  legal 
authority.  *  *  Lord  Mansfield  states  that  this  court  was 

coeval  with  the  establishment  of  the  Saxons  here,  and  its 
activity  marked  very  visibly  both  among  the  Saxons  and 
Danes.  *  *  The  leet  is  a  court  of  record  for  the  cogni¬ 

zance  of  criminal  matters,  or  pleas  of  the  crown ;  and  neces¬ 
sarily  belongs  to  the  king;  though  a  subject,  usually  the  lord 


70 


TRIAL  BY  JURY. 


of  the  manor,  may  be,  and  is,  entitled  to  the  profits,  consisting 
of  the  essoign  pence,  fines,  and  amerciaments. 

“It  is  held  before  the  steward,  or  tons,  in  ancient  times ,  before 
the  bailiff ,  of  the  lord.”  —  Tomlin's  Laiv  Diet.,  word  Court- 
Leet. 

Of  course  the  jury  were  the  judges  in  this  court,  where  only 
a  “steward”  or  “  bailiff”  of  a  manor  presided. 

“No  cause  of  consequence  was  determined  without  the 
king’s  writ ;  for  even  in  the  county  courts,  of  the  debts,  which 
were  above  forty  shillings,  there  issued  a  Justicies  (commission) 
to  the  sheriff,  to  enable  him  to  hold  such  plea,  ivhere  the  suitors 
are  judges  of  the  law  and  fact.”  —  Gilberts  History  of  the 
Common  Pleas ,  Introduction ,  p.  19. 

“  This  position”  (that  “  the  matter  of  law  was  decided  by 
the  King’s  Justices,  but  the  matter  of  fact  by  the  pares”)  “is 
wholly  incompatible  with  the  common  law,  for  the  Jurata 
(jury)  were  the  sole  judges  both  of  the  law  and  the  fact.”  — 
Gilbert's  History  of  the  Comm, on  Pleas ,  p.  70,  note. 

“We  come  now  to  the  challenge  ;  and  of  old  the  suitors  in 
court,  v)ho  were  judges,  could  not  be  challenged ;  nor  by  the 
feudal  law  could  the  pares  be  even  challenged,  Pares  qui 
ordinariam  jurisdictionem  habent  recusari  non  possunt ;  (the 
peers  who  have  ordinary  jurisdiction  cannot  be  rejected ;)  “  but 
those  suitors  who  are  judges  of  the  court,  could  not  be  chal¬ 
lenged  ;  and  the  reason  is,  that  there  are  several  qualifications 
required  by  the  writ,  viz.,  that  they  be  liberos  et  legates  homi¬ 
nes  de  vincineto  (free  and  legal  men  of  the  neighborhood)  of 
the  place  laid  in  the  declaration,”  &c.,  &c.  —  Ditto ,  p.  93. 

“Ad  question em  juris  non  respondent  Juratores.”  (To  the 
question  of  law  the  jurors  do  not  answer.)  “The  Annotist 
says,  that  this  is  indeed  a  maxim  in  the  Civil-Law  Jurispru¬ 
dence,  but  it  does  not  bind  an  English  jury,  for  by  the  common 
law  of  the  kmd  the  jury  are  judges  as  well  of  the  matter  of 
law,  as  of  the  fact,  with  this  difference  only,  that  the  (a  Saxon 
word)  or  judge  on  the  bench  is  to  give  them  no  assistance  in 
determining  the  matter  of  fact,  but  if  they  have  any  doubt 
among  themselves  relating  to  matter  of  law,  they  may  then 
request  him  to  explain  it  to  them,  which  when  he  hath  done, 
and  they  are  thus  become  well  informed,  they,  and  they  only, 
become  competent  judges  of  the  matter  of  law.  And  this  is 
the  province  of  the  judge  on  the  bench,  namely,  to  show,  or 
teach  the  law,  but  not  to  take  upon  him  the  trial  of  the  delin¬ 
quent,  either  in  matter  of  fact  or  in  matter  of  law.”  (Here 
various  Saxon  laws  are  quoted.)  “In  neither  of  these  funda- 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE.  71 


mental  laws  is  there  the  least  word,  hint,  or  idea,  that  the  earl 
or  alderman  (that  is  to  say,  the  Prepositus  (presiding  officer) 
of  the  court,  which  is  tantamount  to  the  judge  on  the  bench )  is 
to  take  upon  him  to  judge  the  delinquent  in  any  sense  what¬ 
ever,  the  sole  purport  of  his  office  is  to  teach  the  secular  or 
worldly  law.”  —  Ditto ,  p.  57,  note. 

“The  administration  of  justice  was  carefully  provided  for: 
it  was  not  the  caprice  of  their  lord,  but  the  sentence  of  their 
peers ,  that  they  obeyed.  Each  was  the  judge  of  his  equals, 
and  each  by  his  equals  was  judged .” —  Introd.  to  Gilbert  on 
Tenures ,  p.  12. 

Hallam  says:  “A  respectable  class  of  free  socagers,  hav¬ 
ing,  in  general,  full  rights  of  alienating  their  lands,  and  hold¬ 
ing  them  probably  at  a  small  certain  rent  from  the  lord  of  the 
manor,  frequently  occur  in  Domes-day  Book.  *  *  They 

undoubtedly  were  suitors  to  the  court-baron  of  the  lord,  to 
whose  soc ,  or  right  of  justice,  they  belonged.  They  were  con¬ 
sequently  judges  in  civil  causes,  determined  before  the  manorial 
tribunal —  2  Middle  Ages,  481. 

Stephens  adopts  as  correct  the  following  quotations  from 
Blackstone : 

“  The  Court-Baron  is  a  court  incident  to  every  manor  in  the 
kingdom,  to  be  holden  by  the  steward  within  the  said  manor.” 
*  *  It  “  is  a  court  of  common  law,  and  it  is  the  court  before 

the  freeholders  who  owe  suit  and  service  to  the  manor f  (are 
bound  to  serve  as  jurors  in  the  courts  of  the  manor.)  “ the 
steward,  being  rather  the  registrar  than  the  judge.  *  *  The 
freeholders’  court  was  composed  of  the  lord’s  tenants,  who 
were  the  pares  (equals)  of  each  other,  and  were  bound  by 
their  feudal  tenure  to  assist  their  lord  in  the  dispensation  of 
domestic  justice.  This  was  formerly  held  every  three  weeks; 
and  its  most  important  business  was  to  determine,  by  writ  of 
right,  all  controversies  relating  to  the  right  of  lajids  within  the 
manor. ” — 3  Stephens'  Commentaries,  392-3.  3  Blackstone, 

32-3. 

“A  Hundred  Court  is  only  a  larger  court-baron,  being  held 
for  all  the  inhabitants  of  a  particular  hundred,  instead  of  a 
manor.  The  free  suitors  ( jurors )  are  here  also  the  judges, 
and  the  steward  the  register .”  —  3  Stephens,  394.  3  Black¬ 

stone,  33. 

“  The  County  Court  is  a  court  incident  to  the  jurisdiction 
of  the  sheriff.  *  *  The  freeholders  of  the  county  are  the 

real  judges  in  this  court ,  and  the  sheriff  is  the  ministerial 
officer.  '  —  3  Stephens ,  395-6.  3  Blackstone ,  35-6. 


72 


TRIAL  BY  JURY. 


Blackstone  describes  these  courts,  as  courts  “  wherein  inju- 
ries  were  rec/ressed  in  an  easy  and  expeditions  manner ,  by  the 
suffrage  of  neighbors  and  f  riends."  — 3  Blackstone ,  30. 

“When  we  read  of  a  certain  number  of  freemen  chosen  by 
the  parties  to  decide  in  a  dispute  —  all  bound  by  oath  to  vote  in 
foro  conscientia  —  and  that  their  decision,  not  the  will  of  the 
judge  presiding ,  ended  the  suit,  we  at  once  perceive  that  a 
great  improvement  has  been  made  in  the  old  form  of  compur¬ 
gation —  an  improvement  which  impartial  observation  can 
have  no  hesitation  to  pronounce  as  identical  in  its  main  feat¬ 
ures  with  the  trial  by  jury.”  —  Dunham,' s  Middle  Ages,  Sec. 
2,  B.  2,  Ch.  1.  57  Lardner's  Cab.  Cyc.,  60. 

j  “  The  bishop  and  the  earl,  or,  in  his  absence,  the  gerefa, 
(sheriff,)  and  sometimes  both  the  earl  and  the  gerefa,  presided 
at  the  schyre-mote  (county  court)  ;  the  gerefa  (sheriff)  usually 
alone  presided  at  the  mote  (meeting  or  court)  of  the  hundred. 
In  the  cities  and  towns  which  were  not  within  any  peculiar 
jurisdiction,  there  was  held,  at  regular  stated  intervals,  a 
burgh  mote,  (borough  court,)  for  the  administration  of  justice, 
at  which  a  gerefa,  or  a  magistrate  appointed  by  the  king,  pre¬ 
sided.” —  *S pence's  Origin  of  the  Laws  and  Political  Institu¬ 
tions  of  Modern  Europe ,  p.  444. 

“The  right  of  the  plaintiff  and  defendant,  and  of  the  pros¬ 
ecutor  and  criminal,  to  challenge  the  judices,  (judges,)  or 
assessors  f  appointed  to  try  the  cause  in  civil  matters ,  and  to 
decide  upon  the  guilt  or  innocence  of  the  accused  in  criminal 
matters ,  is  recognized  in  the  treatise  called  the  Laws  of  Henry 
the  First;  but  I  cannot  discover,  from  the  Anglo-Saxon  laws 
or  histories,  that  before  the  Conquest  the  parties  had  any  gen¬ 
eral  right  of  challenge;  indeed ,  had  such  right  existed,  the 
injunctions  to  all  persons  standing  in  the  situation  of  judges 
( jurors j  to  do  right  according  to  their  conscience,  would 
scarcely  have  been  so  frequently  and  anxiously  repeated.”  — 
Spence,  456. 

Hale  says : 

“  The  administration  of  the  common  justice  of  the  kingdom 
seems  to  be  wholly  dispensed  in  the  county  courts,  hundred 
courts,  and  courts-baron ;  except  some  of  the  greater  crimes 
reformed  by  the  laws  of  King  Henry  I.,  and  that  part  thereof 
which  was  sometimes  taken  up  by  the  Jusiitiarius  Anglice. 


*  The  jurors  were  sometimes  called  “  assessors,”  because  they  assessed,  or  determined 
the  amount  of  fines  and  amercements  to  be  imposed. 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE.  73 


This  doubtless  bred  great  inconvenience,  uncertainty,  and 
variety  in  the  laws,  viz. : 

“  First,  by  the  ignorance  of  the  judges,  which  were  the  free¬ 
holders  of  the  county.  *  * 

“Thirdly,  a  third  inconvenience  was,  that  all  the  business  of 
any  moment  was  carried  by  parties  and  factions.  For  the 
freeholders  being  generally  the  judges,  and  conversing  one 
among  another,  and  being  as  it  were  the  chief  judges,  not 
only  of  the  fact ,  but  of  the  law ;  every  man  that  had  a  suit 
there,  sped  according  as  he  could  make  parties.”  —  1  Hale’s 
History  of  the  Common  Laic,  p.  246. 

“  In  all  these  tribunals,”  (county  court,  hundred  court, 
&c.,)  “ the  judges  were  the  free  tenants ,  owing  suit  to  the 
court,  and  afterwards  called  its  peers.”  —  1  Lin gar d' s  History 
of  England,  488. 

Henry  calls  the  twelve  jurors  “  assessors,”  and  says  : 

“  These  assessors,  who  were  in  reality  judges,  took  a  solemn 
oath,  that  they  would  faithfully  discharge  tiie  duties  of  their 
office,  and  not  suffer  an  innocent  man  to  be  condemned,  nor 
any  guilty  person  to  be  acquitted.”  —  3  Henry's  History  of 
Great  Britain,  346. 

Tyrrell  says : 

“  Alfred  cantoned  his  kingdom,  first  into  Trillings  and 
Lathes,  as  they  are  still  called  in  Kent  and  other  places,  con¬ 
sisting  of  three  or  four  Hundreds;  in  which,  the  freeholders 
being  judges ,  such  causes  were  brought  as  could  not  be 
determined  in  the  Hundred  court.”  —  Tyrrell's  Introduction 
to  the  History  of  England,  p.  80. 

Of  the  Hundred  Court  he  says  : 

“  In  this  court  anciently,  one  of  the  principal  inhabitants, 
called  the  alderman,  together  with  the  barons  of  the  Hun¬ 
dred *  — id  est  the  freeholders  —  ivas  judge."  —  Ditto,  p.  80. 

Also  he  says : 

“  By  a  law  of  Edward  the  Elder,  ‘  Every  sheriff  shall  con- 


*  “  The  barons  of  the  Hundred  ”  were  the  freeholders.  Hallam  says  :  “  The  word 
baro,  originally  meaning  only  a  man,  was  of  very  large  significance,  and  is  not  unfre- 
quently  applied  to  common  freeholders,  as  in  the  phrase  court-baron."  —  3  Middle 
Ages,  14L-15. 

Blackstone  says  :  “  The  court-baron  *  *  is  a  court  of  common  law,  and  it  is  the 
court  of  the  barons,  by  which  name  the  freeholders  were  sometimes  anciently  called  ; 
for  that  it  is  held  before  the  freeholders  who  owe  suit  and  service  to  the  manor.”  — 
3  Blackstone,  33. 


7 


74 


TRIAL  BY  JURY. 


vene  the  people  once  a  month,  and  do  equal  right  to  all, 
putting  an  end  to  controversies  at  times  appointed.’”  —  Ditto , 
p.  S6. 

£t  A  statute,  emphatically  termed  the  £  Grand  Assize,’  enabled 
the  defendant,  if  he  thought  proper,  to  abide  by  the  testimony 
of  the  twelve  good  and  lawful  knights,  chosen  by  four  others 
of  the  vicinage,  and  whose  oaths  gave  a  final  decision  to  the 
contested  claim .”  —  1  Palgrave' s  Rise  and  Progress  of  the 
English  Common-wealth,  261. 

££  From  the  moment  when  the  crown  became  accustomed  to 
the  ‘Inquest,’  a  restraint  was  imposed  upon  every  branch  of 
the  prerogative.  The  king  could  never  lie  informed  of  his 
rights,  but  through  the  medium  of  the  -people.  Every  ‘extent’ 
by  which  he  claimed  the  profits  and  advantages  resulting  from 
the  casualties  of  tenure,  every  process  by  which  he  repressed 
the  usurpations  of  the  baronage,  depended  upon  the  ‘  good 
men  and  true’  who  were  impanelled  to  ‘pass’  between  the 
subject  and  the  sovereign;  and  the  thunder  of  the  Exchequer 
at  Westminster  might  be  silenced  by  the  honesty,  the  firmness, 
or  the  obstinacy,  of  one  sturdy  knight  or  yeoman  in  the  dis¬ 
tant  shire. 

Taxation  was  controlled  in  the  same  manner  by  the  voice 
of  those  who  were  most  liable  to  oppression.  *  *  A  jury  was 
impanelled  to  adjudge  the  proportion  due  to  the  sovereign; 
and  this  course  was  not  essentially  varied,  even  after  the  right 
of  granting  aids  to  the  crown  was  fully  acknowledged  to  be 
vested  in  the  parliament  of  the  realm.  The  people  taxed 
themselves;  and  the  collection  of  the  grants  was  checked  and 
controlled,  and,  perhaps,  in  many  instances  evaded,  by  these 
virtual  representatives  of  the  community. 

The  principle  of  the  jury  was,  therefore,  not  confined  to  its 
mere  application  as  a  mode  of  trying  contested  facts,  whether 
in  civil  or  criminal  cases  ;  and,  both  in  its  form  and  in  its  con¬ 
sequences,  it  had  a  very  material  influence  upon  the  general 
constitution  of  the  realm.  *  *  The  main-spring  of  the 

machinery  of  remedial  justice  existed  in  the  franchise  of  the 
lower  and  lowest  orders  of  the  political  hierarchy.  Without 
the  suffrage  of  the  yeoman,  the  burgess,  and  the  churl,  the 
sovereign  could  not  exercise  the  most  important  and  most 
essential  function  of  royalty;  from  them  he  received  the 
power  of  life  and  death;  he  could  not  wield  the  sword  of  jus¬ 
tice  until  the  humblest  of  his  subjects  placed  the  weapon  in 
his  hand.”  —  1  Palgrave' s  Rise  and  Progress  of  the  Eng¬ 
lish  Constitution ,  274-7. 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE. 


75 


Coke  says,  “The  court  of  the  county  is  no  court  of  record,* 
and  the  suitors  are  the  judges  thereof —  4  Inst.,  266. 

Also,  “The  court  of  the  Hundred  is  no  court  of  record,  and 
the  suitors  be  thereof  judges.'"  —  4  I/ist.,  267. 

Also,  “The  court-baron  is  a  court  incident  to  every  manor, 
and  is  not  of  record,  and  the  suitors  be  thereof  judges."  —  4 
Inst.,  268. 

Also,  “The  court  of  ancient  demesne  is  in  the  nature  of  a 
court-baron,  'wherein  the  suitors  are  judges,  and  is  no  court  of 
record.”  —  4  lust.,  269. 

Millar  says,  “Some  authors  have  thought  that  jurymen 
were  originally  compurgators ,  called  by  a  defendant  to  swear 
that  they  believed  him  innocent  of  the  facts  with  which  he 
was  charged.  .  .  But  .  .  compurgators  were  merely 

witnesses ;  jurymen  were ,  in  reality,  judges.  The  former  were 
called  to  confirm  the  oath  of  the  party  by  swearing,  according 
to  their  belief,  that  he  had  told  the  truth,  (in  his  oath  of  purga¬ 
tion  ;)  the  latter  were  appointed  to  try,  by  witnesses,  and  by  all 
other  means  of  proof,  whether  he  was  innocent  or  guilty. 

.  Juries  were  accustomed  to  ascertain  the  truth  of  facts,  by 
the  defendant’s  oath  of  purgation,  together  with  that  of  his 
compurgators.  .  .  Both  of  them  (jurymen  and  compurga¬ 

tors)  were  obliged  to  swear  that  they  would  tell  the  trutlu  . 

.  According  to  the  simple  idea  of  our  forefathers,  guilt  or 
innocence  was  regarded  as  a  mere  matter  of  fact;  and  it  was 
thought  that  no  man,  who  knew  the  real  circumstances  of  a 
case,  could  be  at  a  loss  to  determine  whether  the  culprit  ought 
to  be  condemned  or  acquitted.”  —  1  Millar's  Hist.  View  of 
Eng.  Gov.,  ch.  12,  p.  332-4. 

Also,  “  The  same  form  of  procedure,  which  took  place  in 
the  administration  of  justice  among  the  vassals  of  a  barony, 
was  gradually  extended  to  the  courts  held  in  the  trading  towns." 
—  Same,  p.  335. 

Also,  “The  same  regulations,  concerning  the  distribution  of 
justice  by  the  intervention  of  juries,  .  .  were  introduced 

into  the  baron  courts  of  the  king,  as  into  those  of  the  nobility, 
or  such  of  his  subjects  as  retained  their  allodial  property.”  — 
Same ,  p.  337. 

Also,  “This  tribunal”  (the  aula,  regis ,  or  king's  court, 
afterwards  divided  into  the  courts  of  King’s  Bench,  Common 


*  The  aneient  jury  courts  kept  no  records,  because  those  who  composed  the  courts 
■could  neither  make  nor  read  records.  Their  decisions  were  preserved  by  the  memories 
of  the  jurors  and  other  persons  present. 


TRIAL  BY  JURY. 


76 

Pleas,  and  Exchequer)  “was  properly  the  ordinary  baron- 
court  ot  the  king;  and,  being  in  the  same  circumstances  with 
the  baron  courts  of  the  nobility,  it  was  under  the  same  neces¬ 
sity  of  trying  causes  by  the  intervention  of  a  jury.”  — Same, 
vol.  2,  p.  292. 

Speaking  of  the  times  of  Edward  the  First,  (1272  to  1307,) 
Millar  says  : 

“What  is  called  the  petty  jury  was  therefore  introduced! 
into  these  tribunals,  (the  King's  Bench,  the  Common  Pleas, 
and  the  Exchequer ,)  as  well  as  into  their  auxiliary  courts- 
employed  to  distribute  justice  in  the  circuits;  and  was  thus 
rendered  essentially  necessary  in  determining  causes  of  every 
sort,  whether  civil,  criminal,  or  fiscal.”  —  Same,  vol.  2,  p.  293-4. 

Also,  “  That  this  form  of  trial  (by  jury)  obtained  univer¬ 
sally  in  all  the  feudal  governments,  as  well  as  in  that  of  Eng¬ 
land,  there  can  be  no  reason  to  doubt.  In  France,  in  Ger¬ 
many,  and  in  other  European  countries,  where  we  have  any 
accounts  of  the  constitution  and  procedure  of  the  feudal  courts, 
it  appears  that  lawsuits  of  every  sort  concerning  the  free¬ 
men  or  vassals  of  a  barony,  were  determined  by  the  pares 
curice  (peers  of  the  court;)  and  that  the  judge  took  little  more 
Upon  him  than  to  regulate  the  method  of  proceeding,  or  to 
declare  the  verdict  of  the  jury.”  —  Same ,  vol.  1,  ch.  12,  p.  329. 

Also,  “Among  the  Gothic  nations  of  modern  Europe,  the 
custom  of  deciding  lawsuits  by  a  jury  seems  to  have  prevailed 
universally;  first  in  the  allodial  courts  of  the  county,  or  of  the 
hundred,  and  afterwards  in  the  baron-courts  of  every  feudal 
superior/’  — Same,  vol.  2,  p.  296. 

Palgrave  says  that  in  Germany  “  The  Graff  (gerefa,  sheriff) 
placed  himself  in  the  seat  of  judgnfient,  and  gave  the  charge 
to  the  assembled  free  Echevins,  warning  them  to  pronounce 
judgment  according  to  right  and  justice.”  — 2  Palgrave,  147. 

Also,  that,  in  Germany,  “  The  Echevins  were  composed  of 
the  villanage,  somewhat  obscured  in  their  functions  by  the 
learning  of  the  grave  civilian  who  was  associated  to  them,  and 
somewhat  limited  by  the  encroachments  of  modern  feudality; 
but  they  were  still  substantially  the  judges  of  the  court.”  — 
Same,  148. 

Palgrave  also  says,  “Scotland,  in  like  manner,  had  the  laws 
of  Burlaw,  or  Birlaw,  which  were  made  and  determined  by 
the  neighbors,  elected  by  common  consent,  in  the  Burlaw  or 
Birlaw  courts,  wherein  knowledge  was  taken  of  complaints 
between  neighbor  and  neighbor,  which  men,  so  chosen,  were 
judges  and  arbitrators,  and  called  Birlaw  men.”  —  1  Pal¬ 
p-rave's  Rise,  &c.,  p.  8(J. 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE.  77 


But,  in  order  to  understand  the  common  law  trial  by  jury, 
as  it  existed  prior  to  Magna  Carta,  and  as  it  was  guaranteed 
by  that  instrument,  it  is  perhaps  indispensable  to  understand 
more  fully  the  nature  of  the  courts  in  which  juries  sat,  and 
the  extent  of  the  powers  exercised  by  juries  in  those  courts. 
I  therefore  give  in  a  note  extended  extracts,  on  these  points, 
from  Stuart  on  the  Constitution  of  England,  and  from  Black- 
stone’s  Commentaries.* 


*  Stuart  says  : 

“  The  courts,  or  civil  arrangements,  which  were  modelled  in  Germany,  preserved  the 
independence  of  the  people;  and  having  followed  the  Saxons  into  England,  and  con¬ 
tinuing  their  importance,  they  supported  the  envied  liberty  wo  boast  of.  *  * 

“Asa  chieftain  led  out  his  retainers  to  the  field,  arid  governed  them  during  war;  so 
in  peace  he  summoned  them  together,  and  exerted  a  civil  jurisdiction.  He  was  at 
once  their  captain  and  their  judge.  They  constituted  his  court;  and  haring  inquired 
with  him  into  the  guilt  of  those  of  their  order  whom  justice  had  accused,  they  assisted 
him  to  enforce  his  decrees. 

“This  court  (the  court-baron)  was  imported  into  England;  but  the  innovation 
which  conquest  introduced  into  the  fashion  of  the  times  altered  somewhat  its  appear¬ 
ance.  *  * 

“  The  head  or  lord  of  the  manor  called  forth  his  attendants  to  his  hall.  *  *  He 

inquired  into  the  breaches  of  custom,  and  of  justice,  which  were  committed  within  the 
precincts  of  his  territory;  and  with  his  followers,  who  sat  with  him  as  judges,  he  deter¬ 
mined  in  all  matters  of  debt,  and  of  trespass  to  a  certain  amount.  He  possessed  a 
similar  jurisdiction  with  the  chieftain  in  Germany,  and  his  tenants  enjojTed  an  equal 
authority  with  the  German  retainers. 

“  But  a  mode  of  administration  which  intrusted  so  much  power  to  the  great  could  not 
long  be  exercised  without  blame  or  injustice.  The  German,  guided  by  the  candor  of 
his  mind,  and  entering  into  all  his  engagements  with  the  greatest  ardor,  perceived  not, 
at  first,  that  the  chieftain  to  whom  he  submitted  his  disputes  might  be  swayed,  in  the 
judgments  he  pronounced,  by  partiality,  prejudice,  or  interest  ;  and  that  the  influence 
he  maintained  with  his  followers  was  too  strong  to  be  restrained  by  justice.  Experi¬ 
ence  instructed  him  of  his  error;  he  acknowledged  the  necessity  of  appealing  from  his 
lord;  and  the  court  of  the  Hundred  was  erected. 

“  This  establishment  was  formed  both  in  Germany  and  England,  by  the  inhabitants  of 
a  certain  division,  who  extended  their  jurisdiction  over  the  territory  they  occupied.* 
They  bound  themselves  under  a  penalty  to  assemble  at  stated  times;  and  having  elected 
the  wisest  to  preside  over  them,  they  judged,  not  otdy  all  civil  and  criminal  matters,  but  of 
those  also  which  regarded  religion  and  the  priesthood.  The  judicial  power  thus  in¬ 
vested  in  tho  people  was  extensive  ;  they  were  able  to  preserve  their  rights,  and 
attended  this  court  in  arms. 

“  As  the  communication,  however,  and  intercourse,  of  the  individuals  of  a  German 
community  began  to  be  wider,  and  more  general,  as  their  dealings  enlarged,  and  as 
disputes  arose  among  the  members  of  different  hundreds,  the  insufficiency  of  these 

*  “It  was  the  freemen  in  Germany,  and  the  possessors  of  land  in  England,  who  were  suitors 
(jurors)  in  the  hundred  court.  These  ranks  of  men  were  the  same.  The  alteration  which  had 
happened  in  relation  to  property  had  invested  the  German  freemen  with  land  or  territory.” 

7* 


7S 


TRIAL  BY  JURY. 


That  all  these  courts  were  mere  courts  of  conscience ,  in 
which  the  juries  were  sole  judges,  administering  justice  accord¬ 
ing  to  their  own  ideas  of  it,  is  not  only  shown  by  the  extracts 


courts  for  the  preservation  of  order  was  gradually  perceived.  The  shyre  mote,  therefore, 
or  county  court,  was  instituted;  and  it  formed  the  chief  source  of  justice  both  in  Ger¬ 
many  and  England. 

“  The  powers,  accordingly,  which  had  been  enjoyed  by  the  court  of  the  hundred,  were 
considerably  impaired.  It  decided  no  longer  concerning  capital  offences;  it  decided  not 
concerning  matters  of  liberty,  and  the  property  of  estates,  or  of  slaves;  its  judg¬ 
ments,  in  every  case,  became  subject  to  review;  and  it  lost  entirely  the  decision  of 
causes,  when  it  delayed  too  long  to  consider  them. 

“Every  subject  of  claim  or  contention  was  brought,  in  the  first  instance,  or  by  appeal, 
to  the  county  court;  and  the  earl,  or  eorldorman,  who  presided  there,  was  active  to  put 
the  laws  in  execution.  He  repressed  the  disorders  which  fell  out  within  the  circuit  of 
his  authority ;  and  the  least  remission  in  his  duty,  or  the  least  fraud  he  committed,  was 
complained  of  and  punished.  He  was  elected  from  among  the  great,  and  was  above  the 
temptation  of  a  bribe ;  but,  to  encourage  his  activity,  he  was  presented  with  a  share  of 
the  territory  he  governed,  or  was  entitled  to  a  proportion  of  the  fines  and  profits  of  jus¬ 
tice.  Every  man,  in  his  district,  was  bound  to  inform  him  concerning  criminals,  and  to 
assist  him  to  bring  them  to  trial;  and,  as  in  rude  and  violent  times  the  poor  and  help¬ 
less  were  ready  to  be  oppressed  by  the  strong,  he  was  instructed  particularly  to  defend 
them. 

“  His  court  was  ambulatory,  and  assembled  only  twice  a  year,  unless  the  distribution 
of  justice  required  that  its  meetings  should  be  oftener.  Every  freeholder  in  the  county 
was  obliged  to  attend  it;  and  should  he  refuse  this  service,  his  possessions  were  seized, 
and  he  was  forced  to  find  surety  for  his  appearance.  The  neighboring  earls  held  not 
their  courts  on  the  same  day;  and,  what  seems  very  singular,  no  judge  was  allowed, 
after  meals,  to  exercise  his  office. 

“  The  druids  also,  or  priests,  in  Germany,  as  we  had  formerly  occasion  to  remark,  and 
the  clergy  in  England,  exercised  a  jurisdiction  in  the  hundred  and  county  courts.  They 
instructed  the  people  in  religious  duties,  and  in  matters  regarding  the  priesthood ;  and 
the  princes,  earls,  or  eorldormen,  related  to  them  the  laws  and  customs  of  the  community. 
These  judges  were  mutually  a  check  to  each  other ;  but  it  was  expected  that  they 
should  agree  in  their  judgments,  and  should  willingly  unite  their  efforts  for  the  public 
interest.* 

“  But  the  prince  or  earl  performed  not,  at  all  times,  in  person,  the  obligations  of  his  office. 
The  enjoyment  of  ease  and  of  pleasure,  to  which  in  Germany  he  had  delivered  himself 
over,  when  disengaged  from  war,  and  the  mean  idea  he  conceived  of  the  drudgery  of 
civil  affairs,  made  him  often  delegate  to  an  mferior  person  the  distribution  of  justice  in  his 
district.  The  same  sentiments  were  experienced  by  the  Saxon  nobility;  and  the  service 
which  they  owed  by  their  tenures,  and  the  high  employments  they  sustained,  called 
them  often  from  the  management  of  their  counties.  The  progress,  too,  of  commerce, 

*  It  would  be  wholly  erroneous,  I  think,  to  infer  from  this  statement  of  Stuart,  that  either  the 
“  priests,  princes,  earls,  or  eorldormen ”  exercised  any  authority  over  the  jury  in  the  trial  of  causes, 
in  the  way  of  dictating  the  law  to  them.  Henry’s  account  of  this  matter  doubtless  gives  a  much 
more  accurate  representation  of  the  truth.  He  says  that  anciently 

“  The  meeting  (the  county  court)  was  opened  with  a  discourse  by  the  bishop,  explaining,  out  of 
the  Scriptures  and  ecclesiastical  canons,  their  several  duties  as  good  Christians  and  members  of  the 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE.  79 

already  given,  but  is  explicitly  acknowledged  in  the  following 
one,  in  which  the  modern  “  courts  of  conscience  ”  are  compared 
with  the  ancient  hundred  and  county  courts ,  and  the  preference 


giving  an  intricacy  to  cases,  and  swelling  the  civil  code,  added  to  the  difficulty  of  their 
office,  and  made  them  averse  to  its  duties.  Sheriffs,  therefore,  or  deputies,  were  frequently 
appointed  to  transact  their  business ,*  and  though  these  were  at  first  under  some  subordination 
to  the  earls,  they  grew  at  length  to  be  entirely  independent  of  them.  The  connection  of  juris¬ 
diction  and  territory  ceasing  to  prevail,  and  the  civil  being  separated  from  the  ecclesiastical 
power,  they  became  the  sole  and  proper  officers  for  the  direction  of  justice  in  the  counties. 

“  The  hundred,  however,  and  county  courts,  were  not  equal  of  themselves  for  the 
purposes  of  jurisdiction  and  order.  It  was  necessary  that  a  court  should  be  erected, 
of  supreme  authority,  where  the  disputes  of  the  great  should  be  decided,  where  the 
disagreeing  sentiments  of  judges  should  be  reconciled,  and  where  protection  should  be 
given  to  the  people  against  their  fraud  and  injustice. 

tc  The  princes  accordingly,  or  chief  nobility,  in  the  German  communities,  assembled 
together  to  judge  of  such  matters.  The  Saxon  nobles  continued  this  prerogative;  and 
the  king,  or,  in  his  absence,  the  chief  justiciary,  watched  over  their  deliberations.  But 
it  was  not  on  every  trivial  occasion  that  this  court  interested  itself.  In  smaller  concerns, 
justice  was  refused  during  three  sessions  of  the  hundred,  and  claimed  without  effect,  at 
four  courts  of  the  county,  before  there  could  lie  an  appeal  to  it. 

“  So  gradually  were  these  arrangements  established,  and  so  naturally  did  the  varying 
circumstances  in  the  situation  of  the  Germans  and  Anglo-Saxons  direct  those  suc¬ 
cessive  improvements  which  the  preservation  of  order,  and  the  advantage  of  society, 
called  them  to  adopt.  The  admission  of  the  people  into  the  courts  of  justice  preserved, 
among  the  former,  that  equality  of  ranks  for  which  they  were  remarkable  ;  and  it 
helped  to  overturn,  among  the  latter,  those  envious  distinctions  which  the  feudal  system 
tended  to  introduce,  and  prevented  that  venality  in  judges,  and  those  arbitrary  pro¬ 
ceedings,  which  the  growing  attachment  to  interest,  and  the  influence  of  the  crown, 
might  otherwise  have  occasioned.”  —  Stuart  on  the  Constitution  of  England,  p.  222 
to  245. 

“  In  the  Anglo-Saxon  period,  accordingly,  twelve  only  were  elected ;  and  these, 
together  with  the  judge,  or  presiding  officer  of  the  district,  being  sworn  to  regard  jus¬ 
tice,  and  the  voice  of  reason,  or  conscience,  all  causes  were  submitted  to  them.”  — 
Ditto,  p.  260. 

“  Before  the  orders  of  men  were  very  nicely  distinguished,  the  jurors  were  elected 
from  the  same  rank.  When,  however,  a  regular  subordination  of  orders  was  estab¬ 
lished,  and  when  a  knowledge  of  property  had  inspired  the  necessitous  with  envy,  and 
the  rich  with  contempt,  every  man  was  tried  by  his  equals.  The  same  spirit  of  liberty 
which  gave  rise  to  this  regulation  attended  its  progress.  Nor  could  monarchs  assume 
a  more  arbitrary  method  of  proceeding.  ‘  I  will  not  ’  (said  the  Earl  of  Cornwall  to  his 

church.  After  this,  the  alderman,  or  one  of  his  assessors,  made  a  discourse  on  the  laws  of  the 
land,  and  the  duties  of  good  subjects  and  good  citizens.  IV hen  these  preliminaries  ivere  over, 
they  proceeded  to  try  and  determine,  first  the  causes  of  the  church,  next  the  pleas  of  the 
crown,  and  last  of  all  the  controversies  of  private  parties.’’  —  3  Henry’s  History  of  Great 
Britain,  343. 

This  view  is  corroborated  by  Tyrrell’s  Introduction  to  the  History  of  England,  p.  83-84,  and 
by  Spence’s  Origin  of  the  Laws  and  Political  Institutions  of  Modern  Europe,  p.  447,  and  the 
note  on  the  same  page.  Also  by  a  law  of  Canute  to  this  effect,  In  every  county  let  there  be 
twice  ayear  an  assembly,  whereat  the  bishop  and  the  earl  shall  be  present,  the  one  to  instruct 
the  people  in  divine,  the  other  in  human,  laws.  —  Wilkins,  p.  136. 


so 


TRIAL  BY  JURY. 


given  to  the  latter,  on  the  ground  that  the  duties  of  the  jurors 
in  the  one  case,  and  of  the  commissioners  in  the  other,  are  the 
same,  and  that  the  consciences  of  a  jury  are  a  safer  and  purer 


sovereign)  1  render  up  my  castles,  nor  depart  the  kingdom,  but  by  judgment  of  my 
peers.’  Of  this  institution,  so  wisely  calculated  for  the  preservation  of  liberty,  all  our 
historians  have  pronounced  the  eulogium.”  —  Ditto ,  p.  262-3. 

Blackstone  says  : 

“  The  policy  of  our  ancient  constitution,  as  regulated  and  established  by  the  great 
Alfred,  was  to  bring  justice  home  to  every  man’s  door,  by  constituting  as  many  courts 
of  judicature  as  there  are  manors  and  towns  in  the  kingdom ;  wherein  injuries  were 
redressed  in  an  easy  and  expeditious  manner,  by  the  suffrage  of  neighbors  and  friends. 
These  little  courts,  however,  communicated  with  others  of  a  larger  jurisdiction,  and 
those  with  others  of  a  still  greater  power;  ascending  gradually  from  the  lowest  to  the 
supreme  courts,  which  were  respectively  constituted  to  correct  the  errors  of  the  inferior 
ones,  and  to  determine  such  causes  as,  by  reason  of  their  weight  and  difficulty,  demand¬ 
ed  a  more  solemn  discussion.  The  course  of  justice  flowing  in  large  streams  from  the 
king,  as  the  fountain,  to  his  superior  courts  of  record  ;  and  being  then  subdivided  into 
smaller  channels,  till  the  whole  and  every  part  of  the  kingdom  were  plentifully  watered 
and  refreshed.  An  institution  that  seems  highly  agreeable  to  the  dictates  of  natural 
reason,  as  well  as  of  more  enlightened  policy.  *  *  * 

“  These  inferior  courts,  at  least  the  name  and  form  of  them,  still  continue  in  our 
legal  constitution  ;  but  as  the  superior  courts  of  record  have,  in  practice,  obtained 
a  concurrent  original  jurisdiction,  and  as  there  is,  besides,  a  power  of  removing 
plaints  or  actions  thither  from  all  the  inferior  jurisdictions  ;  upon  these  accounts 
(among  others)  it  has  happened  that  these  petty  tribunals  have  fallen  into  decay, 
and  almost  into  oblivion;  whether  for  the  better  or  the  worse  may  be  matter  of 
some  speculation,  when  we  consider,  on  the  one  hand,  the  increase  of  expense  and 
delay,  and,  on  the  other,  the  more  able  and  impartial  decisions  that  follow  from  this 
change  of  jurisdiction. 

“  The  order  I  shall  observe  in  discoursing  on  these  several  courts,  constituted  for  the 
Tedress  of  civil  injuries,  (for  with  those  of  a  jurisdiction  merely  criminal  1  shall  not  at 
present  concern  myself,*)  will  be  by  beginning  with  the  lowest,  and  those  whose  juris¬ 
diction,  though  public  and  generally  dispersed  through  the  kingdom,  is  yet  (with 
regard  to  each  particular  court)  confined  to  very  narrow  limits;  and  so  ascending 
gradually  to  those  of  the  most  extensive  and  transcendent  power.”  —  3  Blackstone, 
30  to  32. 

“  The  court-baron  is  a  court  incident  to  every  manor  in  the  kingdom,  to  be  holden  by 
the  steward  within  the  said  manor.  This  court-baron  is  of  two  natures  ;  the  one  is  a  cus¬ 
tomary  court,  of  which  we  formerly  spoke,  appertaining  entirely  to  the  copy-holders, 
in  which  their  estates  are  transferred  by  surrender  and  admittance,  and  other  matters 
transacted  relative  to  their  tenures  only.  The  other,  of  which  we  now  speak,  is  a  court 
of  common  law,  and  it  is  a  court  of  the  barons,  by  which  name  the  freeholders  were 
sometimes  anciently  called  ;  for  that  it  is  held  by  the  freeholders  who  owe  suit  and  service  to 
the  manor,  the  steward  being  rather  the  registrar  than  the  judge.  These  courts,  though  in 
their  nature  distinct,  are  frequently  confounded  together.  The  court  we  are  now  consider¬ 
ing,  viz.,  the  freeholders  court,  was  composed  of  the  lord’s  tenants,  who  were  the  pares  (equals) 

*  There  was  no  distinction  between  the  civil  and  criminal  courrts,  as  to  the  rights  or  powers  of 
juries. 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE.  81 


tribunal  than  the  consciences  of  individualsspeciallyappointed, 
and  holding  permanent  offices. 

“But  there  is  one  species  of  courts  constituted  by  act  of 
Parliament,  in  the  city  of  London,  and  other  trading  and  pop¬ 
ulous  districts,  which,  in  their  proceedings,  so  vary  from  the 
course  of  the  common  law,  that  they  deserve  a  more  particular 
consideration.  1  mean  the  court  of  requests,  or  courts  of  con¬ 
science ,  for  the  recovery  of  small  debts.  The  first,  of  these  was 
established  in  London  so  early  as  the  reign  of  Henry  VIII.,  by 
an  act  of  their  common  council;  which,  however,  was  certain¬ 
ly  insufficient  for  that  purpose,  and  illegal,  till  confirmed  by 
statute  3  Jac.  I.,  ch.  15,  which  has  since  been  explained  and 
amended  by  statute  14  Geo.  II.,  ch.  10.  The  constitution  is 
this:  two  aldermen  and  four  commoners  sit  twice  a  week  to 
hear  all  causes  of  debt  not  exceeding  the  value  of  forty  shil¬ 
lings;  which  they  examine  in  a  summary  way,  by  the  oath 
of  the  parties  or  other  witnesses,  and  make  such  order  therein 
as  is  consonant  to  equity  and  good  conscience.  *  *  *  Divers 
trading  towns  and  other  districts  have  obtained  acts  of  Parlia- 


of  each  other ,  and  were  bound  by  their  feudal  tenure  to  assist  their  lord  in  the  dispensation  of 
domestic  justice.  This  was  formerly  held  every  three  weeks  ;  and  its  most  important 
business  is  to  determine,  by  writ  of  right,  all  controversies  relating  to  the  right  of  lands 
within  the  manor.  It  may  also  hold  plea  of  any  personal  actions,  of  debt,  trespass  in 
the  case,  or  the  like,  where  the  debt  or  damages  do  not  amount  to  forty  shillings;  which 
is  the  same  sum,  or  three  marks,  that  bounded  the  jurisdiction  of  the  ancient  Gothic 
courts  in  their  lowest  instance,  or  fierding  courts,  so  called  because  four  were  instituted 
within  every  superior  district  or  hundred.”  —  3  Blackstone,  33,  34. 

“  A  hundred  court  is  only  a  larger  court-baron,  being  held  for  all  the  inhabitants  of  a 
particular  hundred,  instead  of  a  manor.  The  free  suitors  are  here  also  the  judges,  and  the 
steivard  the  registrar,  as  in  the  case  of  a  court-baron.  It  is  likewise  no  court  of  record,  re¬ 
sembling  the  former  at  all  points,  except  that  in  point  of  territory  it  is  of  greater  juris¬ 
diction.  This  is  said  by  Sir  Edward  Coke  to  have  been  derived  out  of  the  county  court 
for  the  ease  of  the  people,  that  they  might  have  justice  done  to  them  at  their  own  doors, 
without  any  charge  or  loss  of  time  ;  but  its  institution  was  probably  coeval  with  that  of 
hundreds  themselves,  which  were  formerly  observed  to  have  been  introduced,  though 
not  invented,  by  Alfred,  being  derived  from  the  polity  of  the  ancient  Germans.  The 
centeni ,  we  may  remember,  were  the  principal  inhabitants  of  a  district  composed  of  dif¬ 
ferent  villages,  originally  in  number  a  hundred,  but  afterward  only  called  by  that  name, 
and  who  probably  gave  the  same  denomination  to  the  district  out  of  which  they  were 
chosen.  Csesar  speaks  positively  of  the  judicial  power  exercised  in  their  hundred  courts 
and  courts-baron.  ‘ Princeps  regiorum  alque  pagorum’  (which  we  may  fairly  construe 
the  lords  of  hundreds  and  manors)  ‘inter  suos  jus  dicunt,  controversies  que  minuunt .’ 
(The  chiefs  of  the  country  and  the  villages  declare  the  law  among  them,  and  abate  con¬ 
troversies.)  And  Tacitus,  who  had  examined  their  constitution  still  more  attentively, 
informs  us  not  only  of  the  authority  of  the  lords,  but  that  of  the  centeni,  the  hundreders, 
or  jury,  who  were  taken  out  of  the  common  freeholders,  and  had  themselves  a  share  in  the  de¬ 
termination.  ‘  Eliguntur  in  conciliis  et  principes,  quijura  perpagos  vicosque  reddunt,  centeni 


82 


TRIAL  BY  JURY. 


raent,  for  establishing  in  them  courts  of  conscience  upon  nearly 
the  same  plan  as  that  in  the  city  of  London. 

“The  anxious  desire  that  has  been  shown  to  obtain  these 
several  acts,  proves  clearly  that  the  nation,  in  general,  is  truly 
sensible  of  the  great  inconvenience  arising  from  the  disuse  of 
the  ancient  county  and  hundred  courts,  wherein  causes  of  this 
small  value  were  always  formerly  decided  with  very  little 
trouble  and  expense  to  the  parties.  But  it  is  to  be  feared  that 
the  general  remedy,  which  of  late  hath  been  principally  applied 
to  this  inconvenience,  (the  erecting  these  new  jurisdictions,) 
may  itself  be  attended  in  time  with  very  ill  consequences ;  as 
the  method  of  proceeding  therein  is  entirely  in  derogation  of 
the  common  law;  and  their  large  discretionary  powers  create 
a  petty  tyranny  in  a  set  of  standing  commissioners;  and  as  the 
disuse  of  the  trial  by  jury  may  tend  to  estrange  the  minds  of 
the  people  from  that  valuable  prerogative  of  Englishmen, 
which  has  already  been  more  than  sufficiently  excluded  in 
many  instances.  How  much  rather  is  it  to  be  wished  that  the 
proceedings  in  the  county  and  hundred  courts  coidd  be  again 


singulis,  ex  plebe  comites  concilium  simul  et  auctoritas  adsunt.’  (The  princes  are  chosen  in 
the  assemblies,  who  administer  the  laws  throughout  the  towns  and  villages,  and  with 
each  one  are  associated  an  hundred  companions,  taken  from  the  people,  for  purposes 
both  of  counsel  and  authority.)  This  hundred  court  was  denominated  hasreda  in  the 
Gothic  constitution.  But  this  court,  as  causes  are  equally  liable  to  removal  from  hence 
as  from  the  common  court-baron,  and  by  the  same  writs,  and  may  also  be  reviewed  by 
writ  of  false  judgment,  is  therefore  fallen  into  equal  disuse  with  regard  to  the  trial  of 
actions.”  —  3  Blackstone,  34,  35. 

“The  county  court  is  a  court  incident  to  the  jurisdiction  of  the  sheriff .  It  is  not  a 
court  of  record,  but  may  hold  pleas  of  debt,  or  damages,  under  the  value  of  forty  shil¬ 
lings  ;  over  some  of  which  causes  these  inferior  courts  have,  by  the  express  words  of 
the  statute  of  Gloucester,  (6  Edward  I.,  ch.  8,)  a  jurisdiction  totally  exclusive  of  the 
king’s  superior  courts.  *  *  The  county  court  may  also  hold  plea  of  many  real  actions, 
and  of  all  personal  actions  to  any  amount,  by  virtue  of  a  special  writ,  called  njusticies, 
which  is  a  writ  empowering  the  sheriff,  for  the  sake  of  despatch,  to  do  the  same  justice 
in  his  county  court  as  might  otherwise  be  had  at  Westminster.  The  freeholders  of  the 
county  court  are  the  real  judges  in  this  court,  and  the  sheriff  is  the  ministerial  officer.  *  *  * 
In  modern  times,  as  proceedings  are  removable  from  hence  into  the  king’s  superior 
courts,  by  writ  of  pone  or  recordari,  in  the  same  manner  as  from  hundred  courts  and 
courts-baron,  and  as  the  same  writ  of  false  judgment  may  be  had  in  nature  of  a  writ 
of  error,  this  has  occasioned  the  same  disuse  of  bringing  actions  therein.”  —  3  Black- 
stone,  3G,  37. 

“  Upon  the  whole,  we  cannot  but  admire  the  wise  economy  and  admirable  provision 
of  our  ancestors  in  settling  the  distribution  of  justice  in  a  method  so  well  calculated  for 
cheapness,  expedition,  and  ease.  By  the  constitution  which  they  established,  all  trivial 
debts,  and  injuries  of  small  consequence,  were  to  be  recovered  or  redressed  in  every 
man’s  own  county,  hundred,  or  perhaps  parish.”  —  3  Blackstone,  59. 


ANCIENT  COMMON  LAW  JURIES  COURTS  OF  CONSCIENCE.  83 


revived ,  without  burdening  the  freeholders  with  too  frequent 
and  tedious  attendances;  and  at  the  same  time  removing  the 
delays  that  have  insensibly  crept  into  their  proceedings,  and 
the  power  that  either  party  has  of  transferring  at  pleasure 
their  suits  to  the  courts  at  Westminster!  And  we  may ,  with 
satisfaction ,  observe ,  that  this  experiment  has  been  actually 
tried ,  and  has  succeeded  in  the  populous  county  of  Middlesex, 
which  might  serve  as  an  example  for  others.  For  by  statute 
23  Geo.  II.,  ch.  33,  it  is  enacted : 

1.  That  a  special  county  court  shall  be  held  at  least  once 
in  a  month,  in  every  hundred  of  the  county  of  Middlesex,  by 
the  county  clerk. 

2.  That  twelve  f  reeholders  of  that  hundred ,  qualified  to  serve 
on  juries,  and  struck  by  the  sheriff,  shall  be  summoned  to  ap¬ 
pear  at  sucli  court  by  rotation ;  so  as  none  shall  be  summoned 
oftener  than  once  a  year. 

3.  That  in  all  causes  not  exceeding  the  value  of  forty  shil¬ 
lings,  the  county  clerk  and  twelve  suitors  ( jurors )  shall  proceed 
in  a  summary  way,  examining  the  parties  and  witnesses  on 
oath,  without  the  formal  process  anciently  used  ;  and  shall 
make  such  order  therein  as  they  shall  judge  agreeable  to  con¬ 
science .” —  3  Blackstone,  81-83. 

What  are  these  but  courts  of  conscience  ?  And  yet  Black- 
stone  tells  us  they  are  a  revival  of  the  ancient  hundred  and 
county  courts.  And  what  does  this  fact  prove,  but  that  the 
ancient  common  law  courts,  in  which  juries  sat,  were  mere 
courts  of  conscience? 

It  is  perfectly  evident  that  in  all  these  courts  the  jurors  were 
the  judges,  and  determined  all  questions  of  law  for  themselves ; 
because  the  only  alternative  to  that  supposition  is,  that  the 
jurors  took  their  law  from  sheriffs,  bailiffs,  and  stewards,  of 
which  there  is  not  the  least  evidence  in  history,  nor  the  least 
probability  in  reason.  It  is  evident,  also,  that  they  judged 
independently  of  the  laws  of  the  king,  for  the  reasons  before 
given,  viz.,  that  the  authority  of  the  king  was  held  in  very 
little  esteem;  and,  secondly,  that  the  laws  of  the  king  (not 
being  printed,  and  the  people  being  unable  to  read  them  if 
they  had  been  printed)  must  have  been  in  a  great  measure 
unknown  to  them,  and  could  have  been  received  by  them  only 
on  the  authority  of  the  sheriff,  bailiff,  or  steward.  If  laws 
were  to  be  received  by  them  on  the  authority  of  these  officers, 


84 


TRIAL  BY  JURY. 


the  latter  would  have  imposed  such  laws  upon  the  people  as 
they  pleased. 

These  courts,  that  have  now  been  described,  were  continued 
in  full  power  long  after  Magna  Carta,  no  alteration  being  made 
in  them  by  that  instrument,  nor  in  the  mode  of  administering 
justice  in  them. 

There  is  no  evidence  whatever,  so  far  as  I  am  aware,  that 
the  juries  had  any  less  power  in  the  courts  held  by  the  king’s 
justices,  than  in  those  held  by  sheriffs,  bailiffs,  and  stewards; 
and  there  is  no  probability  whatever  that  they  had.  All  the 
difference  between  the  former  courts  and  the  latter  undoubtedly 
was,  that,  in  the  former,  the  juries  had  the  benefit  of  the  advice 
and  assistance  of  the  justices,  which  would,  of  course,  be  con¬ 
sidered  valuable  in  difficult  cases,  on  account  of  the  justices 
being  regarded  as  more  learned,  not  only  in  the  laws  of  the 
king,  but  also  in  the  common  law,  or  “law  of  the  land.” 

The  conclusion,  therefore,  I  think,  inevitably  must  be,  that 
neither  the  laws  of  the  king,  nor  the  instructions  of  his  justices, 
had  any  authority  over  jurors  beyond  what  the  latter  saw  fit 
to  accord  to  them.  And  this  view  is  confirmed  by  this  remark 
of  Hallam,  the  truth  of  which  all  will  acknowledge  : 

“  The  rules  of  legal  decision,  among  a  rude  people,  are 
always  very  simple ;  not  serving  much  to  guide,  far  less  to 
control  the  feelings  of  natural  equity.”  — 2  Middle  Ages,  ch.  8, 
part  2,  p.  465. 

It  is  evident  that  it  was  in  this  way,  by  the  free  and  con¬ 
current  judgments  of  juries,  approving  and  enforcing  certain 
laws  and  rules  of  conduct,  corresponding  to  their  notions  of 
right  and  justice,  that  the  laws  and  customs,  which,  for  the 
most  part,  made  up  the  comm, on  lain,  and  were  called,  at  that 
day,  “  the  good  laws,  and  good  customs ,”  and  “  the  law  of  the 
land,”  were  established.  How  otherwise  could  they  ever  have 
become  established,  as  Blackstone  says  they  were,  “  by  long  and 
immemorial  usage,  and  by  their  universal  reception  through¬ 
out  the  kingdom,,” *  when,  as  the  Mirror  says,  “  justice  was  so 
done,  that  every  one  so  judged  his  neighbor ,  by  such  judgment 
as  a  man  could  not  elseivhere  receive  in  the  like  cases,  until  such 


*  1  Blackstone,  63-67. 


OATHS  OF  JURORS. 


85 


times  as  the  customs  of  the  realm  were  put  in  writing  and  cer¬ 
tainly  published  ?  ” 

The  fact  that,  in  that  dark  age,  so  many  of  the  principles 
of  natural  equity,  as  those  then  embraced  in  the  Common 
Law ,  should  have  been  so  uniformly  recognized  and  enforced 
by  juries,  as  to  have  become  established  by  general  consent  as 
“  the  law  of  the  land and  the  further  fact  that  this  “  law  of 
the  land  ”  was  held  so  sacred  that  even  the  king  could  not 
lawfully  infringe  or  alter  it,  but  was  required  to  swear  to 
maintain  it,  are  beautiful  and  impressive  illustrations  of  the 
truth  that  men’s  minds,  even  in  the  comparative  infancy  of 
other  knowledge,  have  clear  and  coincident  ideas  of  the  ele¬ 
mentary  principles,  and  the  paramount  obligation,  of  justice. 
The  same  facts  also  prove  that  the  common  mind,  and  the 
general,  or,  perhaps,  rather,  the  universal  conscience,  as  devel¬ 
oped  in  the  untrammelled  judgments  of  juries,  may  be  safely 
relied  upon  for  the  preservation  of  individual  rights  in  civil 
society  ;  and  that  there  is  no  necessity  or  excuse  for  that  deluge 
of  arbitrary  legislation,  with  which  the  present  age  is  over¬ 
whelmed,  under  the  pretext  that  unless  laws  be  ?nade,  the  law 
will  not  be  known;  a  pretext,  by  the  way,  almost  universally 
used  for  overturning,  instead  of  establishing,  the  principles 
of  justice. 


SECTION  III. 

The  Oaths  of  Jurors. 

The  oaths  that  have  been  administered  to  jurors,  in  Eng¬ 
land,  and  which  are  their  legal  guide  to  their  duty,  all  (so  far 
as  I  have  ascertained  them)  corroborate  the  idea  that  the  jurors 
are  to  try  all  cases  on  their  intrinsic  merits,  independently  of 
any  laws  that  they  deem  unjust  or  oppressive.  It  is  probable 
that  an  oath  was  never  administered  to  a  jury  in  England, 
either  in  a  civil  or  criminal  case,  to  try  it  according  to  laiv. 

The  earliest  oath  that  I  have  found  prescribed  by  law  to  be 
administered  to  jurors  is  in  the  laws  of  Ethelred,  (about  the 
year  1015,)  which  require  that  the  jurors  “  shall  swear ,  with 
their  hands  upon  a  holy  thing ,  that  they  will  condemn  no  man 
8 


TRIAL  15  Y  JURY. 


86 

that  is  innocent ,  nor  acquit  any  that  is  guilty."  —  4  Blade- 
stout ?,  302.  2  Turner's  History  of  the  Anglo-Saxons,  155, 
Wilkins'  Lairs  of  the  Anglo-Saxons,  117.  Spelman's  Glos¬ 
sary,  word  Jurata. 

Biackstone  assumes  that  this  was  the  oath  of  the  grand 
jury  (4  Biackstone,  302);  but  there  was  but  one  jury  at  the 
time  this  oath  was  ordained.  The  institution  of  two  juries,, 
grand  and  petit,  took  place  after  the  Norman  Conquest. 

Hume,  speaking  of  the  administration  of  justice  in  the  time 
of  Alfred,  says  that,  in  every  hundred, 

“  Twelve  freeholders  were  chosen,  who,  having  sworn, 
together  with  the  hundreder,  or  presiding  magistrate  of  that 
division,  to  administer  impartial  justice,  proceeded  to  the  exam¬ 
ination  of  that  cause  which  was  submitted  to  their  jurisdic¬ 
tion.”’ —  Hume,  ch.  2. 

By  a  law  of  Henry  II.,  in  1164,  it  was  directed  that  the 
sheriff  “  faciet  jurare  duodecim  legates  homines  de  vicineio  sen 
de  villa,  quod  hide  veritatem  secundum  conscientiam  suam 
manifesto  bunt,"  (shall  make  twelve  legal  men  from  the  neigh¬ 
borhood  to  swear  that  they  'will  make  known,  the  truth  accord¬ 
ing  to  their  conscience .)  —  Crabbs's  History  of  the  English 
Law,  119.  1  Reeves,  87.  Wilkins,  321-323. 

Glanville,  who  wrote  within  the  half  century  previous  to 
Magna  Carta,  says : 

“  Each  of  the  knights  summoned  for  this  purpose  (as  jurors) 
ought  to  swear  that  he  will  neither  utter  that  which  is  false, 
nor  knowingly  conceal  the  truth.”  —  Beames ’  Glanville,  65. 

Reeve  calls  the  trial  by  jury  “  the  trial  by  twelve  men 
sworn  to  speak  the  truth."  —  1  Reeve's  History  of  the  Eng¬ 
lish  Law,  87. 

Henry  says  that  the  jurors  “took  a  solemn  oath,  that  they 
would  faithfully  discharge  the  duties  of  their  office,  and  not 
suffer  an  innocent  man  to  be  condemned,  nor  any  guilty 
person  to  be  acquitted.”  —  3  Henry' s  Hist,  of  Great  Brit¬ 
ain,  346. 

The  Mirror  of  Justices ,  (written  within  a  century  after 
Magna  Carta,)  in  the  chapter  on  the  abuses  of  the  Common 
Law,  says : 

“It  is  abuse  to  use  the  words,  to  their  knowledge,  in  their 
oaths,  to  make  the  jurors  speak  upon  thoughts,  since  the  chief 
words  of  their  oaths  be  that  they  speak  the  truth."  —  p.  249. 


OATHS  OF  JURORS. 


S  7 


Smith,  writing  in  the  time  of  Elizabeth,  says  that,  in  civil 
suits,  the  jury  “  he  sworn  to  declare  the  truth  of  that  issue 
according  to  the  evidence,  and  their  conscience.”  —  Emilies 
•Commonwealth  of  England,  edition  of  1621,  p.  73. 

In  criminal  trials,  he  says: 

“  The  clerk  giveth  the  juror  an  oath  to  go  uprightly  betwixt 
(the  prince  and  the  prisoner.”  —  Ditto ,  p.  90.* 


*  This  quaint  and  curious  book  (Smith’s  Commonwealth  oi'  England)  describes  the 
minutiae  of  trials,  giving  in  detail  the  mode  of  impanelling  the  jury,  and  then  the  con¬ 
duct  of  the  lawyers,  witnesses,  and  court.  I  give  the  following  extracts,  tending  to  show 
■that  the  judges  impose  no  law  upon  the  juries,  in  either  civil  or  criminal  cases,  but  only 
require  th(  m  to  determine  the  causes  according  to  their  consciences. 

In  civil  causes  he  .says : 

“  When  it  is  thought  that  it  is  enough  pleaded  before  them,  and  tft  witnesses  have 
raid  what  they  can,  one  of  the  judges,  with  a  brief  arid  pithy  recapitulation,  reeiteth  to 
the  twelve  in  sum  the  arguments  of  the  sergeants  of  either  side,  that  which  the  wit¬ 
nesses  have  declared,  and  the  chief  points  of  the  evidence  showed  in  writing,  and  once 
again  putteth  them  in  mind  of  the  issue,  and  sometime  giveth  it.  them  in  writing, 
delivering  to  them  the  evidence  which  is  showed  on  either  part,  if  any  be,  (evidence 
here  is  called  writings  of  contracts,  authentical  .after  the  manner  of  England,  that  is  .to 
say,  wi'itten,  sealed,  and  delivered,)  and  biddeth  them  go  together.”  —  p.  74. 

This  is  the  whole  account  given  of  the  eharge  to  the  jury. 

In  criminal  eases,  after  the  witnesses  have  been  heard,  and  the  prisoner  has  said  what 
he  pleases  in  his  defence,  the  book  proceeds  : 

“  When  the  judge  hath  heard  them  say  enough,  ho  asketh  if  they  can  say  any  more: 
If  they  say  no,  then  he  turneth  his  speech  to  the  inquest.  ‘  Good  men,  (saith  he,)  ye 
-of  the  inquost,  ye  have  heard  what  these  men  say  against  the  prisoner.  You  have  also 
heard  what  the  prisoner  can  say  for  himself.  Have  an  eye  to  your  oath,  and  to  your 
duty,  and  do  that  which  (rod  shall  put  in  your  minds  to  the  discharge  of  your  consciences , 
and  mark  well  what  is  said.’  ”  —  p.  92. 

This  is  the  whole  account  given  of  tho  charge  in  a  criminal  case. 

The  following  statement  goes  to  confirm  tho  same  idea,  that  jurors  in  England  have 
formerly  understood  it  to  be  their  right  and  duty  to  judge  only  according  to  their  con¬ 
sciences,  and  not  to  submit  to  any  dictation  from  the  eourt,  either  as  to  law  or  fact. 

“  If  having  pregnant  evidence,  nevertheless,  the  twelve  do  acquit  the  malefactor, 
which  they  will  do  sometime,  especially  if  they  perceive  cither  one  of  the  justices  or 
■of  the  judges,  or  some  other  man,  to  pursue  too  much  and  too  maliciously  tho  death  of 
4he  prisoner,  *  *  the  prisoner  escapeth ;  but  the  twelve  (are)  not  only  rebuked  by 

the  judges,  but  also  threatened  of  punishment ;  and  many  times  commanded  to  appear 
in  the  Star-Chamber,  or  before  the  Privy  Council  tor  the  matter.  But  this  threatening 
■chanccth  oftener  than  the  execution  thereof  ;  and  the  twelve  answer  with  most  gentle 
words,  they  did  it  according  to  their  consciences ,  and  pray  the  judges  to  be  good  unto  them, 
they  did  as  they  thought  right,  and  as  they  accorded  all,  and  so  it  passeth  away  for  the 
most  part.”  —  p.  100. 

The  account  given  of  the  trial  of  a  peer  of  the  realm  corroborates  the  same  point : 

« If  any  duke,  marquis,  or  any  other  of  the  degrees  of  a  baron,  or  above,  lord  of 
the  Parliament,  be  appeacbcd  of  treason,  or  any  other  capital  crime,  ho  is  judged  by 
his  peers  and  equals;  that  is,  the  yeomanry  doth  not  go  upon  him,  but  an  inquest  of 
tho  Lords  of  Parliament,  and  they  give  their  voice  not  one  for  all,  but  each  severally 
as  they  do  in  Parliament,  being  (beginning)  at  the  youngest  lord.  And  forjudge  one 
lord  sitteth,  who  is  constable  of  England  for  that  clay.  The  judgment  once  given,  ho 
breaketh  his  stall,  and  abdicateth  his  office-  In  the  rest  there  is  no  difference  from  that 
above  written,”  (that  is,  in  the  cate  of  a  freeman.)  — p.  9tL 


ss 


TRIAL  BY  JURY. 


Hale  says : 

“  Then  twelve,  and  no  less,  of  such  as  are  indifferent  and 
are  returned  upon  the  principal  panel,  or  the  tales,  arc  sworn 
to  try  the  same  according  to  the  evidence.”  — 2  Hale's  His¬ 
tory  of  the  Common  Law,  141, 

It  appears  from  Blackstone  that,  even  at  this  day ,  neither  in 
civil  nor  criminal  cases ,  are  jurors  in  England  sworn  to  try 
causes  according  to  law.  He  says  that  in  civil  suits  the  jury 
are 

“Sworn  well  and  truly  to  try  the  issue  between  the  parties-, 
and  a  true  verdict  to  give  according  to  the  evidence.”  —  3 
Blackstone ,  305. 

“  The  is9ue ”  to  be  tried  is  whether  A  owes  B  anything; 
and  if  so,  how  much  ?  or  whether  A  has  in  his  possession 
anything  that  belongs  to  B ;  or  whether  A  has  wronged  B, 
and  ought  to  make  compensation;  and  if  so,  how  much? 

No  statute  passed  by  a  legislature,  simply  as  a  legis¬ 
lature,  can  alter  either  of  these  “issues”  in  hardly  any  con¬ 
ceivable  case,  perhaps  in  none.  No  unjust  law  could  ever 
alter  them  in  any.  They  are  all  mere  questions  of  natural 
justice,  which  legislatures  have  no  power  to  alter,  and  with 
which  they  have  no  right  to  interfere,  further  than  to  provide 
for  having  them  settled  by  the  most  competent  and  impartial 
tribunal  that  it  is  practicable  to  have,  and  then  for  having  all 
just  decisions  enforced.  And  any  tribunal,  whether  judge  or 
jury,  that  attempts  to  try  these  issues,  has  no  more  moral  right 
to  be  swerved  from  the  line  of  justice,  by  the  will  of  a  legis¬ 
lature,  than  by  the  will  of  any  other  body  of  men  whatever. 
And  this  oath  does  not  require  or  permit  a  jury  to  be  so 
swerved. 

In  criminal  cases,  Blackstone  says  the  oath  of  the  jury  in 
England  is  : 

“  Well  and  truly  to  try,  and  true  deliverance  make,  between 
our  sovereign  lord,  the  king,  and  the  prisoner  whom  they  have 
in  charge,  and  a  true  verdict  to  give  according  to  the  evi¬ 
dence.”  —  4  Blackstone ,  355. 

“The  issue”  to  be  tried,  in  a  criminal  case,  is  “guilty,”  or 
“  not  guilty.”  The  laws  passed  by  a  legislature  can  rarely, 
if  ever,  have  anything  to  do  with  this  issue.  “  Guilt  ”  is  an 


•OATHS  OF  JURORS. 


89 


intrinsic  quality  of  actions,  and  can  neither  be  created, 
destroyed,  nor  changed  by  legislation.  And  no  tribunal  that 
attempts  to  try  this  issue  can  have  any  moral  right  to  declare 
a  man  guilty ,  for  an  act  that  is  intrinsically  innocent,  at  the 
bidding  of  a  legislature,  any  more  than  at  the  bidding  of  any¬ 
body  else.  And  this  oath  does  not  require  or  permit  a  jury  to 
do  so. 

The  words,  u  according  to  the  evidence have  doubtless 
been  introduced  into  the  above  oaths  in  modern  times.  They 
are  unquestionably  in  violation  of  the  Common  Law,  and  of 
Magna  Carta,  if  by  them  be  meant  such  evidence  only  as  the 
government  sees  fit  to  allow  to  go  to  the  jury.  If  the  govern¬ 
ment  can  dictate  the  evidence,  and  require  the  jury  to  decide 
according  to  that  evidence,  it  necessarily  dictates  the  conclu¬ 
sion  to  which  they  must  arrive.  In  that  case  the  trial  is 
really  a  trial  by  the  government,  and  not  by  the  jury.  The 
jury  cannot  try  an  issue ,  unless  they  determine  what  evidence 
shall  be  admitted.  The  ancient  oaths,  it  will  be  observed,  say 
nothing  about  u  according  to  the  evidence .”  They  obviously 
take  it  for  granted  that  the  jury  try  the  whole  case;  and  of 
course  that  they  decide  what  evidence  shall  be  admitted.  It 
would  be  intrinsically  an  immoral  and  criminal  act  for  a  jury 
to  declare  a  man  guilty,  or  to  declare  that  one  man  owed 
money  to  another,  unless  all  the  evidence  were  admitted, 
which  they  thought  ought  to  be  admitted,  for  ascertaining  the 
truth.* 

Grand  Jury.  —  If  jurors  are  bound  to  enforce  all  laws  passed 
by  the  legislature,  it  is  a  very  remarkable  fact  that  the  oath 
of  grand  juries  does  not  require  them  to  be  governed  by  the 
laws  in  finding  indictments.  There  have  been  various  forms 
of  oath  administered  to  grand  jurors;  but  by  none  of  them 
that  I  recollect  ever  to  have  seen,  except  those  of  the  States 


*  “  The  present  form  of  the  jurors’  oath  is  that  they  shall  ‘  give  a  true  verdict  accord¬ 
ing  to  the  evidenced  At  what  time  this  form  was  introduced  is  uncertain;  but  for 
several  centuries  after  the  Conquest,  the  jurors,  both  in  civil  and  criminal  cases,  were 
sworn  merely  to  speak  the  truth.  (Glanville,  lib.  2,  cap.  17;  Bracton,  lib.  3,  cap.  22; 
lib.  4,  p.  287,  291;  Britton,  p.  135.)  lienee  their  decision  was  accurately  termed 
veredictum,  or  verdict,  thaft  is,  ‘  a  thing  truly  said  ’ ;  whereas  the  phrase  ‘  true  verdict  ’ 
in  the  modern  oath  is  not  an  accurate  expression.” — Political  Dictionary,  word  Jury. 

8* 


90 


TRIAL  BY  JURY. 


of  Connecticut  and  Vermont,  are  they  sworn  to  present  men 
according  to  law.  The  English  form,  as  given  in  the  essay  on 
Grand  Juries,  written  near  two  hundred  years  ago,  and  sup¬ 
posed  to  have  been  written  by  Lord  Somers,  is  as  follows  : 

“  You  shall  diligently  inquire,  and  true  presentment  make, 
of  all  such  articles,  matters,  and  things,  as  shall  be  given  you 
in  charge,  and  of  all  other  matters  and  things  as  shall  come  to 
your  knowledge  touching  this  present  service.  The  king’s 
council,  your  fellows,  and  your  own,  you  shall  keep  secret. 
You  shall  present  no  person  for  hatred  or  malice;  neither  shall 
you  leave  any  one  unpresented  for  favor,  or  affection,  for  love 
or  gain,  or  any  hopes  thereof;  but  in  all  things  you  shall  pre¬ 
sent  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  to 
the  best  of  your  knowledge.  So  help  you  God.” 

This  form  of  oath  is  doubtless  quite  ancient,  for  the  essay 
says  “our  ancestors  appointed”  it.  — See  Essay ,  p.  33-34. 

.On  the  obligations  of  this  oath,  the  essay  says : 

“  If  it  be  asked  how,  or  in  what  manner,  the  (grand)  juries 
•shall  inquire,  the  answer  is  ready,  according  to  the  best  of  their 
understandings.  They  only,  not  the  judges,  are  sworn  to 
search  diligently  to  find  out  all  treasons,  &c.,  within  their 

•  charge,  and  they  must  and  ought  to  use  their  own  discretion 

•  in  the  way  and  manner  of  their  inquiry.  No  directions  can 

legally  be  imposed  upon  them,  by  any  court  or  judges ;  an 
honest  jury  will  thankfully  accept  good  advice  from  judges,  as 
their  assistants ;  but  they  are  bound  by  their  oaths  to  present 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,  to  the 
best  of  their  own,  not  the  judge’s,  knowledge.  Neither  can 
they,  without  breach  of  that  oath,  resign  their  consciences,  or 
blindly  submit  to  the  dictates  of  others ;  and  therefore  ought 
to  receive  or  reject  such  advices,  as  they  judge  them  good  or 
bad.  *  *  Nothing  can  be  more  plain  and  express  than 

the  words  of  the  oath  are  to  this  purpose.  The  jurors  need 
not  search  the  law  books,  nor  tumble  over  heaps  of  old 
records,  for  the  explanation  of  them.  Our  greatest  lawyers 
may  from  hence  learn  more  certainly  our  ancient  law  in  this 
case,  than  from  all  the  books  in  their  studies.  The  language 
wherein  the  oath  is  penned  is  known  and  understood  by  every 
man,  and  the  words  in  it  have  the  same  signification  as  they 
have  wheresoever  else  they  are  used.  The  judges,  without 
assuming  to  themselves  a  legislative  power,  cannot  put  a  new 
sense  upon  them,  other  than  according  to  their  genuine,  com¬ 
mon  meaning.  They  cannot  magisterially  impose  their 
opinions  upon  the  jury,  and  make  them  forsake  the  direct 


KIGHT  OF  JURIES  TO  FIX  SENTENCE. 


91 


words  of  their  oath,  to  pursue  their  glosses.  The  grand 
inquest  are  bound  to  observe  alike  strictly  every  part  of  their 
oath,  and  to  use  all  just  and  proper  ways  which  may  enable 
them  to  perform  it;  otherwise  it  were  to  say,  that  after  men 
had  sworn  to  inquire  diligently  after  the  truth,  according  to  the 
best  of  their  knowledge,  they  were  bound  to  forsake  all  the 
natural  and  proper  means  which  their  understandings  suggest 
for  the  discovery  of  it,  if  it  be  commanded  by  the  judges.”  — 
Lord  Somers'  Essay  on  Grand  Juries,  p.  38. 

What  is  here  said  so  plainly  and  forcibly  of  the  oath  and 
obligations  of  grand  juries,  is  equally  applicable  to  the  oath 
and  obligations  of  petit  juries.  In  both  cases  the  simple  oaths 
of  the  jurors,  and  not  the  instructions  of  the  judges,  nor  the 
statutes  of  kings  nor  legislatures,  are  their  legal  guides  to  their 
duties.* 


SECTION  IV. 

The  Right  of  Juries  to  fix  the  Sentence. 

The  nature  of  the  common  law  courts  existing  prior  to 
Magna  Carta,  such  as  the  county  courts,  the  hundred  courts, 
the  court-leet,  and  the  court-baron,  all  prove,  what  has  already 
been  proved  from  Magna  Carta,  that,  in  jury  trials,  the  juries 
fixed  the  sentence ;  because,  in  those  courts,  there  was  no  one 
but  the  jury  who  could  fix  it,  unless  it  were  the  sheriff,  bailiff, 
or  steward ;  and  no  one  will  pretend  that  it  was  fixed  by  them. 
The  juries  unquestionably  gave  the  “judgment”  in  both  civil 
and  criminal  cases. 

That  the  juries  were  to  fix  the  sentence  under  Magna  Carta, 
is  also  shown  by  statutes  subsequent  to  Magna  Carta. 

A  statute  passed  fifty-one  years  after  Magna  Carta,  says 
that  a  baker,  for  default  in  the  weight  of  his  bread,  “  debeat 
amerciari  vel  subire  judicium  pillorae,”  —  that  is,  “ought  to 
be  amerced,  or  suffer  the  sentence  of  the  pillory.”  And  that 
a  brewer,  for  “selling  ale,  contrary  to  the  assize,”  “ debcat 
amerciari,  vel  pati  judicium  tumbrelli;”  that  is,  “ ought  to  be 


*  Of  course,  there  can  bo  no  legal  trial  by  jury,  in  either  civil  or  criminal  oases, 
where  th6  jury  are  sworn  to  try  the  oases  “  according  to  law.” 


92  TRIAL  BY  JURY. 

amerced,  or  suffer  judgment  of  the  tumbrel.”  —  51  Henry  III-, 
st.  G.  (12GG.) 

If  the  king  (the  legislative  power)  had  had  authority  to  fix 
the  punishments  of  these  offences  imperatively,  he  would  nat¬ 
urally  have  said  these  offenders  shall  be  amerced,  and  shall 
suffer  judgment  of  the  pillory  and  tumbrel,  instead  of  thus 
simply  expressing  the  opinion  that  they  ought  to  be  punished 
in  that  manner. 

The  statute  of  Westminster,  passed  sixty  years  after  Magna 
Carta,  provides  that, 

“  No  city,  borough,  nor  town,  nor  any  man ,  be  amerced, 
without  reasonable  cause,  and  according  to  the  quantity  of  the 
trespass;  that  is  to  say,  every  freeman  saving  his  freehold,  a 
merchant  saving  his  merchandise,  a  villein  his  waynage,  and 
that  by  his  or  their  peers.”  — 3  Edward  ch.  6.  (1275.) 

The  same  statute  (ch.  18)  provides  further,  that, 

“Forasmuch  as  the  common  fine  and  amercement  of  the 
whole  county  in  Eyre  of  the  justices  for  false  judgments,  or 
for  other  trespass,  is  unjustly  assessed  by  sheriffs  and  baretors 
in  the  shires,  so  that  the  sum  is  many  times  increased,  and 
the  parcels  otherwise  assessed  than  they  ought  to  be,  to  the 
damage  of  the  people,  which  be  many  times  paid  to  the  sheriffs 
and  baretors,  which  do  not  acquit  the  payers;  it  is  provided, 
and  the  king  wills,  that  from  henceforth  such  sums  shall  be 
assessed  before  the  justices  in  Eyre,  afore  their  departure,  by 
the  oath  of  knights  and  other  honest  men,  upon  all  such  as 
ought  to  pay;  and  the  justices  shall  cause  the  parcels  to  be  put 
into  their  estreats,  which  shall  be  delivered  up  unto  the  ex¬ 
chequer,  and  not  the  whole  sum.”  —  St.  3  Edward  I. ,  ch.  18, 
(1275.)* 

The  following  statute,  passed  in  1341,  one  hundred  and 
twenty-five  years  after  Magna  Carta,  providing  for  the  trial 
of  peers  of  the  realm,  and  the  king’s  ministers,  contains  a  re- 


*  Coke,  as  late  as  1588,  admits  that  amercements  must  be  fixed  by  the  peers  (8 
Coke’s  Rep.  38,  2  Inst.  27);  but  he  attempts,  wholly  without  success,  as  it  seems  to 
me,  to  show  a  difference  between  fines  and  amercements.  The  statutes  are  very  nu¬ 
merous,  running  through  the  three  or  four  hundred  years  immediately  succeeding 
Magna  Carta,  in  which  fines,  ransoms,  and  amercements  are  spoken  of  as  if  they  were 
the  common  punishments  of  offences,  and  as  if  they  all  meant  the  same  thing.  If,  how¬ 
ever,  any  technical  difference  could  be  made  out  between  them,  there  is  clearly  none  in 
principle;  and  the  word  amercement,  as  used  in  Magna  Carta,  must  be  taken  in  its  most 
comprehensive  sense. 


RIGHT  OF  JURIES  TO  FIX  SENTENCE. 


93 


cognition  of  the  principle  of  Magna  Carta,  that  the  jury  are  to 
fix  the  sentence. 

“  Whereas  before  this  time  the  peers  of  the  land  have  been 
arrested  and  imprisoned,  and  their  temporalities,  lands,  and 
tenements,  goods  and  cattels.  asseized  in  the  king’s  hands, 
and  some  put  to  death  without  judgment  of  their  peers  :  It  is 
accorded  and  assented,  that  no  peer  of  the  land,  officer,  nor 
other,  because  of  his  office,  nor  of  things  touching  his  office, 
nor  by  other  cause,  shall  be  brought  in  judgment  to  lose  his 
temporalities,  lands,  tenements,  goods  and  cattels,  nor  to  be 
arrested,  nor  imprisoned,  outlawed,  exiled,  nor  forejudged,  nor 
put  to  answer,  nor  be  judged,  but  by  award  ( sentence )  of  the 
said  peers  in  Parliament.”  — 15  Edward  III.,  st.  1,  sec.  2. 

Section  4,  of  the  same  statute  provides, 

“That  in  every  Parliament,  at  the  third  day  of  every  Par¬ 
liament,  the  king  shall  take  in  his  hands  the  offices  of  all  the 
ministers  aforesaid,”  (that  is,  “the  chancellor,  treasurer,  barons, 
and  chancellor  of  the  exchequer,  the  justices  of  the  one  bench 
and  of  the  other,  justices  assigned  in  the  country,  steward  and 
chamberlain  of  the  king’s  house,  keeper  of  the  privy  seal, 
treasurer  of  the  wardrobe,  controllers,  and  they  that  be  chief 
deputed  to  abide  nigh  the  king’s  son,  Duke  of  Cornwall,”) 
“and  so  they  shall  abide  four  or  five  days;  except  the  offices 
of  justices  of  the  one  place  or  the  other,  justices  assigned, 
barons  of  exchequer;  so  always  that  they  and  all  other  minis¬ 
ters  be  put  to  answer  to  every  complaint;  and  if  default  be 
found  in  any  of  the  said  ministers,  by  complaint  or  other 
manner,  and  of  that  attainted  in  Parliament,  he  shall  be  pun¬ 
ished  by  judgment  of  the  peers,  and  put  out  of  his  office,  and 
another  convenient  put  in  his  place.  And  upon  the  same  our 
said  sovereign  lord  the  king  shall  do  (cause)  to  be  pronounced 
and  made  execution  without  delay,  according  to  the  judgment 
( sentence )  of  the  said  peers  in  the  Parliament.” 

Here  is  an  admission  that  the  peers  were  to  fix  the  sentence, 
or  judgment,  and  the  king  promises  to  make  execution  “  ac¬ 
cording  to'1'1  that  sentence. 

And  this  appears  to  be  the  law,  under  which  peers  of  the 
realm  and  the  great  officers  of  the  crown  were  tried  and  sen¬ 
tenced,  for  four  hundred  years  after  its  passage,  and,  for  aught 
I  know,  until  this  day. 

The  first  case  given  in  Hargrave’s  collection  of  English 
State  Trials,  is  that  of  Alexander  Nevil,  Archbishop  of  York, 


94 


TRIAL  BY  JURY. 


Robert  Vere,  Duke  of  Ireland,  Michael  de  la  Pole,  Earl  of 
Suffolk,  and  Robert  Tresilian,  Lord  Chief  Justice  of  England, 
with  several  others,  convicted  of  treason,  before  “the  Lords 
of  Parliament,”  in  13S8.  The  sentences  in  these  cases  were 
adjudged  by  the  “  Lords  of  Parliament,”  in  the  following  terms, 
as  they  are  reported. 

“Wherefore  the  said  Lords  of  Parliament,  there  present,  as 
judges  in  Parliament,  in  this  case,  by  assent  of  the  king ,  pro¬ 
nounced  their  sentence ,  and  did  adjudge  the  said  archbishop, 
duke,  and  earl,  with  Robert  Tresilian,  so  appealed,  as  afore¬ 
said,  to  be  guilty,  and  convicted  of  treason,  and  to  be  drawn 
and  hanged,  as  traitors  and  enemies  to  the  king  and  kingdom; 
and  that  their  heirs  should  be  disinherited  forever,  and  their 
lands  and  tenements,  goods  and  chattels,  forfeited  to  the  king, 
and  that  the  temporalities  of  the  Archbishop  of  York  should 
be  taken  into  the  king’s  hands.” 

Also,  in  the  same  case,  Sir  John  Holt ,  Sir  William  Burgh , 
Sir  John  Cary,  Sir  Roger  Fulthorpe ,  and  John  Locton ,  “  were 
by  the  lords  temporal ,  by  the  assent  of  the  king ,  adjudged  to 
be  drawn  and  hanged,  as  traitors,  their  heirs  disinherited,  and 
their  lands  and  tenements,  goods  and  chattels,  to  be  forfeited 
to  the  king.” 

Also,  in  the  same  case,  John  Blake ,  “of  council  for  the 
king,”  and  Thomas  Uske,  under  sheriff  of  Middlesex,  having 
been  convicted  of  treason, 

“  The  lords  awarded,  by  assent  of  the  king,  that  they  should 
both  be  hanged  and  drawn  as  traitors,  as  open  enemies  to  the 
king  and  kingdom,  and  their  heirs  disinherited  forever,  and 
their  lands  and  tenements,  goods  and  chattels,  forfeited  to  the 
king.” 

Also,  “ Simon  Burleigh,  the  king’s  chamberlain,”  being  con¬ 
victed  of  treason,  “  by  joint  consent  of  the  king  and  the  lords. 
sentence  was  pronounced  against  the  said  Simon  Burleigh,  that 
he  should  be  drawn  from  the  town  to  Tyburn,  and  there  be 
hanged  till  he  be  dead,  and  then  have  his  head  struck  from 
his  body.” 

Also,  “  John  Beauchamp ,  steward  of  the  household  to  the 
king,  James  Beroverse,  and  John  Salisbury,  knights,  gentle¬ 
men  of  the  privy  chamber,  were  in  like  manner  condemned .” 
—  1  Hargrave' s  State  Trials,  first  case. 

Here  the  sentences  were  all  fixed  by  the  peers,  with  the  as¬ 
sent  of  the  kins;-  But  that  the  king  should  be  consulted,  and 
his  assent  obtained  to  the  sentence  pronounced  by  the  peers, 


RIGHT  OF  JURIES  TO  FIX  SENTENCE. 


95 


does  not  imply  any  deficiency  of  power  on  their  part  to  fix  the 
sentence  independently  of  the  king.  There  are  obvious  reasons 
why  they  might  choose  to  consult  the  king,  and  obtain  his 
approbation  of  the  sentence  they  were  about  to  impose,  without 
supposing  any  legal  necessity  for  their  so  doing. 

So  far  as  we  can  gather  from  the  reports  of  state  trials,  peers 
of  the  realm  were  usually  sentenced  by  those  who  tried  them, 
with  the  assent  of  the  king.  But  in  some  instances  no  mention 
is  made  of  the  assent  of  the  king,  as  in  the  case  of  “Lionel, 
Earl  of  Middlesex,  Lord  High  Treasurer  of  England,”  in  1624, 
(four  hundred  years  after  Magna  Carta,)  where  the  sentence 
was  as  follows : 

“  Th  is  High  Court  of  Parliament  doth  adjudge,  that.  Lionel, 
Earl  of  Middlesex,  now  Lord  Treasurer  of  England,  shall  lose 
all  his  offices  which  he  holds  in  this  kingdom,  and  shall,  here¬ 
after,  be  made  incapable  of  any  office,  place,  or  employment 
in  the  state  and  commonwealth.  That  he  shall  be  imprisoned 
in  the  tower  of  London,  during  the  king’s  pleasure.  That  he 
shall  pay  unto  our  sovereign  lord  the  king  a  fine  of  50,00(1 
pounds.  That  he  shall  never  sit  in  Parliament  any  more,  and 
that  he  shall  never  come  within  the  verge  of  the  court.”  — 2 
Howell's  State  Trials ,  1250. 

Here  was  a  peer  of  the  realm,  and  a  minister  of  the  king,  of 
the  highest  grade;  and  if  it  were  ever  necessary  to  obtain  the 
assent  of  the  king  to  sentences  pronounced  by  the  peers,  it 
would  unquestionably  have  been  obtained  in  this  instance,  and 
his  assent  would  have  appeared  in  the  sentence. 

Lord  Bacon  was  sentenced  by  the  House  of  Lords,  (1620,) 
no  mention  being  made  of  the  assent  of  the  king.  The  sentence 
is  in  these  words  : 

“  And,  therefore,  this  High  Court  doth  adjudge,  That  the 
Lord  Viscount  St.  Albans,  Lord  Chancellor  of  England,  shall 
undergo  fine  and  ransom  of  40,000  pounds.  That  lie  shall  be 
imprisoned  in  the  tower  during  the  king’s  pleasure.  That  he 
shall  forever  be  incapable  of  any  office,  place,  or  employment 
in  the  state  or  commonwealth.  That  he  shall  never  sit  in 
Parliament,  nor  come  within  the  verge  of  the  court.” 

And  when  it  was  demanded  of  him,  before  sentence,  whether 
it  were  his  hand  that  was  subscribed  to  his  confession,  and 


96 


TRIAL  BY  JURY. 


whether  he  would  stand  to  it ;  he  made  the  following  answer, 
which  implies  that  the  lords  were  the  ones  to  determine  his 
sentence. 

“  My  lords,  it  is  my  act,  my  hand,  my  heart.  I  beseech  your 
lordships  to  be  merciful  to  a  broken  reed.’1’’  —  1  Hargrave's 
State  Trials,  386-7. 

The  sentence  against  Charles  the  First,  (1648,)  after  reciting 
the  grounds  of  his  condemnation,  concludes  in  this  form : 

“For  all  which  treasons  and  crimes,  this  court  doth  adjudge, 
that  he,  the  said  Charles  Stuart,  as  a  tyrant,  traitor,  murderer, 
and  public  enemy  to  the  good  people  of  this  nation,  shall  be 
put  to  death  by  the  severing  his  head  from  his  body.” 

The  report  then  adds  : 

“  This  sentence  being  read,  the  president  (of  the  court)  spake 
as  followeth :  1  This  sentence  now  read  and  published,  is  the 
act,  sentence,  judgment  and  resolution  of  the  whole  court.’  ”  — 
1  Hargrave’s  State  Trials,  1037. 

Unless  it  had  been  the  received  “  law  of  the  land  ”  that  those 
who  tried  a  man  should  fix  his  sentence,  it  would  have  re¬ 
quired  an  act  of  Parliament  to  fix  the  sentence  of  Charles,  and 
his  sentence  would  have  been  declared  to  be  “  the  sentence  of 
the  law,"  instead  of  “  the  act,  sentence,  judgment,  and  resolu¬ 
tion  of  the  court." 

But  the  report  of  the  proceedings  in  “the  trial  of  Thomas, 
Earl  of  Macclesfield,  Lord  High  Chancellor  of  Great  Britain, 
before  the  House  of  Lords,  for  high  crimes  and  misdemeanors 
in  the  execution  of  his  office,”  in  1725,  is  so  full  on  this  point, 
and  shows  so  clearly  that  it  rested  wholly  with  the  lords  to  fix 
the  sentence,  and  that  the  assent  of  the  king  was  wholly  un¬ 
necessary,  that  I  give  the  report  somewhat  at  length. 

After  being  found  guilty ,  the  earl  addressed  the  lords,  for  a 
mitigation  of  sentence ,  as  follows  : 

“  ‘  I  am  now  to  expect  your  lordships’judgment ;  and  I  hope 
that  you  will  be  pleased  to  consider  that  I  have  suffered  no 
small  matter  already  in  the  trial,  in  the  expense  I  have  been 
at,  the  fatigue,  and  what  I  have  suffered  otherways.  *  *  I 
have  paid  back  10,800  pounds  of  the  money  already;  I  have 
lost  my  office  ;  I  have  undergone  the  censure  of  both  houses  of 
Parliament,  which  is  in  itself  a  severe  punishment,’  ”  &c.,  &c. 


EIGHT  OF  JURIES  TO  FIX  SENTENCE. 


97 


On  being  interrupted,  he  proceeded: 

“  ‘My  lords,  I  submit  whether  this  be  not  proper  in  mitigation 
of  your  lordships’’  sentence-,  but  whether  it  be  or  not,  I  leave 
myself  to  your  lordships’  justice  and  mercy;  I  am  sure  neither 
of  them  will  be  wanting,  and  I  entirely  submit.’  *  * 

“  Then  the  said  earl,  as  also  the  managers,  were  directed  to 
withdraw;  and  the  House  (of  Lords)  ordered  Thomas,  Earl  of 
Macclesfield,  to  be  committed  to  the  custody  of  the  gentleman 
usher  of  the  black  rod;  and  then  proceeded  to  the  consideration 
of  what  judgment,"  (that  is,  sentence ,  for  he  had  already  been 
found  guilty,)  “  to  give  upon  the  impeachment  against  the 
said  earl.”  *  * 

“  The  next  day,  the  Commons,  with  their  speaker,  being 
present  at  the  bar  of  the  House  (of  Lords),  *  *  the  speaker 
of  the  House  of  Commons  said  as  follows  : 

“‘My  Lords,  the  knights,  citizens,  and  burgesses  in  Parlia¬ 
ment  assembled,  in  the  name  of  themselves,  and  of  all  the 
commons  of  Great  Britain,  did  at  this  bar  impeach  Thomas, 
Earl  of  Macclesfield,  of  high  crimes  and  misdemeanors,  and  did 
exhibit  articles  of  impeachment  against  him,  and  have  made 
good  their  charge.  I  do,  therefore,  in  the  name  of  the  knights, 
citizens,  and  burgesses,  in  Parliament  assembled,  and  of  all 
the  commons  of  Great  Britain,  demand  judgment  ( sentence ) 
of  your  lordships  against  Thomas,  Earl  of  Macclesfield,  for  the 
said  high  crimes  and  misdemeanors.’ 

“Then  the  Lord  Chief  Justice  King,  Speaker  of  the  House 
of  Lords,  said  :  1  Mr.  Speaker,  the  Lords  are  now  ready  to 
proceed  to  judgment  in  the  case  by  you  mentioned. 

“‘Thomas,  Earl  of  Macclesfield,  the  Lords  have  unan¬ 
imously  found  you  guilty  of  high  crimes  and  misdemeanors, 
charged  on  you  by  the  impeachment  of  the  House  of  Commons, 
and  do  now,  according  to  law,  proceed  to  judgment  against  you, 
which  I  am  ordered  to  pronounce.  Their  lordships’  judgment 
is,  and  this  high  court  doth  adjudge,  that  you,  Thomas,  Earl 
of  Macclesfield,  be  fined  in  the  sum  of  thirty  thousand 
pounds  unto  our  sovereign  lord  the  king;  and  that  you  shall 
be  imprisoned  in  the  tower  of  London,  and  there  kept  in  safe 
custody,  until  you  shall  pay  the  said  fine.’”  —  6  Hargrave' 9 
.  State  Trials ,  762-3-4. 

This  case  shows  that  the  principle  of  Magna  Carta,  that  a 
man  should  be  sentenced  only  by  his  peers,  was  in  force,  and 
acted  upon  as  law,  in  England,  so  lately  as  1725,  (five  hun¬ 
dred  years  after  Magna  Carta,)  so  far  as  it  applied  to  a  peer 
of  the  realm. 


9 


98 


TRIAL  BY  JURY. 


But  the  same  principle,  on  this  point,  that  applies  to  a  peer 
of  the  realm,  applies  to  every  freeman.  The  only  difference 
between  the  two  is,  that  the  peers  of  the  realm  have  had  in¬ 
fluence  enough  to  preserve  their  constitutional  rights;  while 
the  constitutional  rights  of  the  people  have  been  trampled  upon 
and  rendered  obsolete  by  the  usurpation  and  corruption  of  the 
government  and  the  courts. 


section  v . 

The  Oaths  of  Judges. 

As  further  proof  that  the  legislation  of  the  king,  whether 
enacted  with  or  without  the  assent  and  advice  of  his  parlia¬ 
ments,  was  of  no  authority  unless  it  were  consistent  with  the 
common  law,  and  unless  juries  and  judges  saw  fit  to  enforce  it, 
it  may  be  mentioned  that  it  is  probable  that  no  judge  in  Eng¬ 
land  was  ever  sworn  to  observe  the  laws  enacted  either  by  the 
king  alone,  or  by  the  king  with  the  advice  and  assent  of  par¬ 
liament. 

The  judges  were  sworn  to  “  do  equal  law,  and  execution  of 
right ,  to  all  the  king's  subjects ,  rich  and  poor ,  without  having 
regard  to  any  person;"  and  that  they  will  “ deny  no  man 
common  right  j'  *  but  they  were  not  sworn  to  obey  or  execute 
any  statutes  of  the  king,  or  of  the  king  and  parliament.  In¬ 
deed,  they  are  virtually  sworn  not  to  obey  any  statutes  that 
are  against  “  common  right,"  or  contrary  to  “  the  common 
law,"  or  “ law  of  the  land;"  but  to  “certify  the  king  thereof” 
—  that  is,  notify  him  that  his  statutes  are  against  the  common 
law;  —  and  then  proceed  to  execute  the  common  law ,  notwith¬ 
standing  such  legislation  to  the  contrary.  The  words  of  the 
oath  on  this  point  are  these  : 

“  That  ye  deny  no  man  common  right  by  ( virtue  of )  the 
king's  letters ,  nor  none  other  man  s,  nor  for  none  other  cause  ; 
and  in  case  any  letters  come  to  you  contrary  to  the  law,  (that 
is,  the  common  law,  as  will  be  seen  on  reference  to  the  entire 
oath  given  in  the  note,)  that  ye  do  nothing  by  such  letters,  but 


*  cc  Common  right 99  was  the  common  law.  1  Coke9s  Inst,  142  a „  2  do.  55,  6, 


■OATHS  OF  JUDGES. 


90 


'certify  the  king  thereof ’  and  proceed  to  execute  the  laic,  (that 
is,  the  common  law,)  notwithstanding  the  same  letters .” 

When  it  is  considered  that  the  king  was  the  sole  legislative 
power,  and  that  he  exercised  this  power,  to  a  great  extent,  by 
orders  in  council,  and  by  writs  and  “letters”  addressed  often¬ 
times  to  some  sheriff,  or  other  person,  and  that  his  commands, 
when  communicated  to  his  justices,  or  any  other  person,  “  by 
letters,”  or  writs,  under  seal ,  had  as  much  legal  authority  as 
laws  promulgated  in  any  other  form  whatever,  it  will  be  seen 
that  this  oath  of  the  justices  absolutely  required  that  they  dis¬ 
regard  any  legislation  that  was  contrary  to  “ common  right f 
or  u  the  common  law,”  and  notify  the  king  that  it  was  con¬ 
trary  to  common  right,  or  the  common  law,  and  then  proceed 
to  execute  the  common  law,  notwithstanding  such  legislation.* 

If  there  could  be  any  doubt  that  such  was  the  meaning  of 
this  oath,  that  doubt  would  be  removed  by  a  statute  passed  by 
the  king  two  years  afterwards,  which  fully  explains  this  oath, 
as  follows : 

“Edward,  by  the  Grace  of  God,  &c.,  to  the  Sheriff  of 
•Stafford,  greeting:  Because  that  by  divers  complaints  made  to 
us,  we  have  perceived  that  the  Laic  of  the  Laud ,  w.hich  we  by 
our  oath  are  bound  to  maintain ,  is  the  less  well  kept,  and  the 
execution  of  the  same  disturbed  many  times  by  maintenance 
and  procurement,  as  well  in  the  court  as  in  the  country;  we 


*  The  oath  of  the  justices  is  in  these  words  : 

“  Ye  shall  swear,  that  well  and  lawfully  ye  shall  serve  our  lord  the  king  and  his 
people,  in  the  office  of  justice,  and  that  lawfully  ye  shall  counsel  the  king  in  his 
business,  and  that  ye  shall  not  counsel  nor  assent  to  anything  which  may  turn  him  in 
damage  or  disherison  in  any  manner,  way,  or  color.  And  that  ye  shall  not  know  the 
damage  or  disherison  of  him,  whereof  ye  shall  not  cause  him  to  be  warned  by  yourself, 
or  by  other;  and  that  ye  shall  do  e/ual  law  and  execution  of  right  to  all  his  subjects,  rich 
and  poor,  without  having  regard  to  any  person.  And  that  yc  take  not  by  yourself,  or  by 
other,  privily  nor  npertly,  gift  nor  reward  of  gold  nor  silver,  nor  of  any  other  thing 
that  may  turn  to  your  profit,  unless  it  be  meat  or  drink,  and  that  of  small  value,  of 
any  man  that  shall  have  any  plea  or  process  hanging  before  you,  as  long  as  the  same 
process  shall  be  so  hanging,  nor  after  for  the  same  cause.  And  that  yc  take  no  fee,  as 
long  as  ye  shall  be  justice,  nor  robe  of  any  man  great  or  small,  but  of  the  king  him¬ 
self.  And  that  ye  give  none  advice  or  counsel  to  no  man  great  or  small,  in  no  case 
where  the  king  is  party.  And  in  ease  that  any,  of  what  estate  or  condition  they  be,  come 
before  you  in  your  sessions  with  force  and  arms,  or  otherwise  against  the  peace,  or 
against  the  form  of  the  statute  thereof  made,  to  disturb  execution  of  the  common 
Jaw,”  (mark  the  term,  “  common  law,”)  “or  to  menace  the  people  that  they  may  not 


too 


TRIAL  BY  JURY. 


greatly  moved  of  conscience  in  this  matter,  and  for  this  canse 
desiring  as  much  for  the  pleasure  of  God,  and  ease  and  quiet¬ 
ness  of  our  subjects,  as  to  save  our  conscience,  and  for  to  save 
and  keep  our  said  oath,  by  the  assent  of  the  great  men  and 
other  wise  men  of  our  council,  we  have  ordained  these  things 
following : 

“First,  we  have  commanded  all  our  justices,  that  they 
shall  from  henceforth  do  equal  law  and  execution  of  right  to 
all  our  subjects,  rich  and  poor,  without  having  regard  to  any 
person,  and  without  omitting  to  do  right  for  any  letters  or  com¬ 
mandment  'which  may  come  to  them  from  us,  or  from  any 
other ,  or  by  any  other  cause.  And  if  that  any  letters ,  writs,  or 
commandments  come  to  the  justices,  or  to  other  deputed  to  do  law 
and  right  according  to  the  'usage  of  the  realm ,  in  disturbance 
of  the  law,  or  of  the  execution  of  the  same,  or  of  right  to  the 
parlies,  the  justices  and.  other  aforesaid  shall  proceed  and  hold 
their  courts  and  processes ,  where  the  pleas  and  matters  be  de¬ 
pending  before  them,  as  if  no  such  letters,  writs,  or  command¬ 
ments  were  come  to  them  ;  and  they  shall  certify  us  and  our 
council  of  such  commandments  which  be  contrary  to  the  law. 
(that  is,  “  the  law  of  the  land/7  or  common  law,)  as  afore  is 
said.’’7*  And  to  the  intent  that  our  justices  shall  do  even 
right  to  all  people  in  the  manner  aforesaid,  without  more  favor 
showing  to  one  than  to  another,  we  have  ordained  and  caused 
our  said  justices  to  be  sworn,  that  they  shall  not  from  hence¬ 
forth,  as  long  as  they  shall  be  in  the  office  of  justice,  take  fee 
nor  robe  of  any  man,  but  of  ourself,  and  that  they  shall  take 
no  gift  nor  reward  by  themselves,  nor  by  other,  privily  nor 


pursue  the  law,  that  ye  shall  cause  their  bodies  to  be  arrested  and  pub  in  prison  ;  and 
in  case  they  be  such  that  ye  cannot  arrest  them,  that  ye  certify  the  king  of  their 
names,  and  of  their  misprision,  hastily,  so  that  he  may  thereof  ordain  a  convenablo 
remedy.  And  that  ye  by  yourself,  nor  by  other,  privily  nor  apertly,  maintain  any 
plea  or  quarrel  hanging  in  the  king’s  court,  or  elsewhere  in  the  country.  And  that  ye 
deny  no  man  common  right  by  the  king’s  letters ,  nor  none  other  man’s ,  nor  for  none  other 
cause;  and  incase  any  Inters  come  to  you  contrary  to  the  law,”  (that  is,  the  common 
law  ”  before  mentioned,)  “  that  ye  do  nothing  by  such  letters, but  certify  the  king  thereof,  and 
proceed  to  execute  the  law,”  ( the  “ common  law”  before  mentioned,)  14 notwithstanding  the 
same  letters.  And  that  ye  shall  do  and  procure  the  profit  of  the  king  and  of  his  crown, 
with  all  things  where  ye  may  reasonably  do  the  same.  And  in  case  yc  be  from  hence¬ 
forth  found  in  default  in  any  of  the  points  aforesaid,  ye  shall  be  at  the  king’s  will  of 
body,  lands,  and  goods,  thereof  to  be  done  as  shall  please  him,  as  God  you  help  and  all 
saints.”  —  18  Edward  III.,  st.  4.  (1344.) 

*  That  the  terms  44  Law”  and  “  Right,”  as  used  in  this  statute,  mean  the  common 
law,  is  shown  by  the  preamble,  which  declares  the  motive  of  the  statute  to  be  that  “  the 
Law  of  the  Land,  (the  common  law,)  which  we  (the  king)  by  our  oath  are  bound  to  main* 
tain,”  may  be  the  better  kept,  &o. 


OATHS  OF  JUDGES. 


101 


apertly,  of  any  man  that  hath  to  do  before  them  by  any  way, 
except  meat  and  drink,  and  that  of  smali  value;  and  that  they 
shall  give  no  counsel  to  great  men  or  small,  in  case  where  we 
be  party,  or  which  do  or  may  touch  us  in  any  point,  upon 
pain  to  be  at  our  will,  body,  lands,  and  goods,  to  do  thereof  as 
shall  please  us,  in  case  they  do  contrary.  And  for  this  cause 
we  have  increased  the  fees  of  the  same,  our  justices,  in  such 
manner  as  it  ought  reasonably  to  suffice  them.” — 20  Ed- 
ward  III .,  ch.  1.  (1346.) 

Other  statutes  of  similar  tenor  have  been  enacted,  as  follows: 

“It  is  accorded  and  established,  that  it  shall  not  be  com¬ 
manded  by  the  great  seal,  nor  the  little  seal,  to  disturb  or 
delay  common  right;  and  though  such  commandments  do 
come,  the  justices  shall  not  therefore  leave  (omit)  to  do  right 
in  any  point.”  —  St.  2  Edward  III. ,  ch.  8.  (1328.) 

“That  by  commandment  of  the  great  seal,  or  privy  seal,  no 
point  of  this  statute  shall  be  put  in  delay;  nor  that  the  justices 
of  whatsoever  place  it  be  shall  let  (omit)  to  do  the  common 
law ,  by  commandment,  which  shall  come  to  them  under  the 
great  seal,  or  the  privy  seal.”  —  14  Edward  III .,  st.  1,  ch.  14. 
•) 

“  It  is  ordained  and  established,  that  neither  letters  of  the 
signet,  nor  of  the  king’s  privy  seal,  shall  be  from  henceforth 
sent  in  damage  or  prejudice  of  the  realm,  nor  in  disturbance 
of  the  law”  (the  common  law).  —  11  Richard  II.,  ch.  10. 
(1387.) 

It  is  perfectly  apparent  from  these  statutes,  and  from  the 
oath  administered  to  the  justices,  that  it  was  a  matter  freely 
confessed  by  the  king  himself,  that  his  statutes  were  of  no 
validity,  if  contrary  to  the  common  law,  or  “common  right.” 

The  oath  of  the  justices,  before  given,  is,  I  presume,  the 
same  that  has  been  administered  to  judges  in  England  from 
the  day  when  it  was  first  prescribed  to  them,  (1344,)  until 
now.  I  do  not  find  from  the  English  statutes  that  the  oath 
has  ever  been  changed.  The  Essay  on  Grand  Juries,  before 
referred  to,  and  supposed  to  have  been  written  by  Lord 
Somers,  mentions  this  oath  (page  73)  as  being  still  adminis¬ 
tered  to  judges,  that  is,  in  the  time  of  Charles  II.,  more  than 
three  hundred  years  after  the  oath  was  first  ordained.  If  the 
oath  has  never  been  changed,  it  follows  that  judges  have  not 
only  never  been  sworn  to  support  any  statutes  whatever  of 
9* 


102 


TRIAL  BY  JURY. 


the  king,  or  of  parliament,  but  that,  for  five  hundred  years 
past,  they  actually  have  been  sworn  to  treat  as  invalid  all 
statutes  that  were  contrary  to  the  common  law. 


SECTION  VI. 

The  Coronation  Oath. 

That  the  legislation  of  the  king  was  of  no  authority  over  a 
jury,  is  further  proved  by  the  oath  taken  by  the  kings  at  their 
coronation.  This  oath  seems  to  have  been  substantially  the 
same,  from  the  time  of  the  Saxon  kings,  down  to  the  seven¬ 
teenth  century,  as  will  be  seen  from  the  authorities  hereafter 
given. 

The  purport  of  the  oath  is,  that  the  king  swears  to  maintain 
the  law  of  the  land  —  that  is,  the  common  km.  In  other  words, 
he  swears  “  to  concede  and  preserve  to  the  English  people  the 
laws  and  customs  conceded  to  them  by  the  ancient ,  just ,  and 
pious  English  kings ,  *  *  and  especially  the  laws,  customs , 
and  liberties  conceded  to  the  clergy  and  people  by  the  illustrious 
king  Edward;”  *  *  and  “  the  just  laws  and  customs  which 
the  common  people  have  chosen ,  (quas  vu.lgus  elegit).” 

These  are  the  same  laws  and  customs  which  were  called 
by  the  general  name  of  “  the  laiv  of  the  land,”  or  “  the  com¬ 
mon  law,”  and,  with  some  slight  additions,  were  embodied  in 
Magna  Carla. 

This  oath  not  only  forbids  the  king  to  enact  any  statutes 
■contrary  to  the  common  law,  but  it  proves  that  his  statutes 
could  be  of  no  authority  over  the  consciences  of  a  jury;  since, 
as  has  already  been  sufficiently  shown,  it  was  one  part  of 
-this  very  common  law  itself,  — that  is,  of  the  ancient  “laws, 

■  customs,  and  liberties,”  mentioned  in  the  oath,  —  that  juries 
should  judge  of  all  questions  that  came  before  them,  according 
to  their  own  consciences,  independently  of  the  legislation  of 
■the  king. 

It  was  impossible  that  this  right  of  the  jury  could  subsist 
consistently  with  any  right,  on  the  part  of  the  king,  to  impose 
any  authoritative  legislation  upon  them.  His  oath,  therefore, 


THE  CORONATION  OATH. 


103 


to  maintain  the  law  of  the  land,  or  the  ancient  “laws,  cus¬ 
toms,  and  liberties,”  was  equivalent  to  an  oath  that  he  would 
never  assume  to  impose  laws  upon  juries,  as  imperative  rules 
of  decision,  or  take  from  them  the  right  to  try  all  cases  accord¬ 
ing  to  their  own  consciences.  It  is  also  an  admission  that  he 
had  no  constitutional  power  to  do  so,  if  he  should  ever  desire 
it.  This  oath,  then,  is  conclusive  proof  that  his  legislation 
was  of  no  authority  with  a  jury,  and  that  they  were  under  no 
obligation  whatever  to  enforce  it,  unless  it  coincided  with  their 
own  ideas  of  justice. 

The  ancient  coronation  oath  is  printed  with  the  Statutes  of 
the  Realm,  vol.  i.,  p.  168,  and  is  as  follows:* 

TRANSLATION. 

“  Form  of  the  Oath  of  the  King  of  England ,  on  his  Coronation. 

(The  Archbishop  of  Canterbury,  to  whom,  of  right  and 
custom  of  the  Church  of  Canterbury,  ancient  and  approved,  it 
pertains  to  anoint  and  crown  the  kings  of  England,  on  the  day 
of  the  coronation  of  the  king,  and  before  the  king  is  crowned, 
shall  propound  the  underwritten  questions  to  the  king.) 

The  laws  and  customs,  conceded  to  the  English  people  by 
the  ancient,  just,  and  pious  English  kings,  will  you  concede 
and  preserve  to  the  same  people,  with  the  confirmation  of  an 
oath?  and  especially  the  laws,  customs,  and  liberties  conceded 
to  the  clergy  and  people  by  the  illustrious  king  Edward  ? 


*  The  following  is  a  copy  of  the  original : 

“  Forma  Jur amend  Regis  Anglia  in  Coronacione  sua  : 

(Archiepiscopus  Cantuarim,  ad  quo  de  jure  et  consuetudine  Ecclcsi®  Cantuarioc,  an- 
tiqua  et  approbata,  pertinet  Reges  Anglia;  inungere  et  coronare,  die  coronacionis  Regis, 
anteque  Rex  coronetur,  faciet  Regi  Interrogationes  subscriptas.) 

Si  leges  et  consuetudines  ab  antiquis  justis  et  Deo  devotis  Regibus  plebi  Anglicano 
concessas,  cum  sacramenti  confirmacione  eidem  plebi  concodere  et  servare  (volueris  :) 
Et  praesertim  leges  et  consuetudines  et  libertates  a  glorioso  Rcge  Edwardo  clero  pop- 
uloquo  concessas  1 

(Et  respondeat  Rex,)  Concedo  et  servare  volo,  et  Sacramento  confirmare. 

Servabis  Ecclesim  Dei,  Cleroque,  et  Populo,  pacem  ox  integro  et  concordiam  in  Deo 
secundum  vires  tuas  1 

(Et  respondeat  Rex,)  Servabo. 

Facies  fieri  in  omnibus  Judiciis  tuis  equam  et  rectam  justiciam,  et  disorecionem,  in 
misericordia  et  veritate,  secundum  vires  tuas  1 

(Et  respondeat  Rex,)  Faciam. 

Concedis  justas,  leges  et  consuetudines  esse  tenendas,  et  promittis  per  te  eas  esse 
protegendas,  et  ad  lionorem  Dei  corroborandas,  quas  vulgus  elegii,  secundum  vires  tuas  1 

(Et  respondeat  Rex,)  Concedo  et  promitto.” 


104 


TRIAL  BY  JURY. 


(And  the  king  shall  answer,)  I  do  concede,  and  will  pre¬ 
serve  them,  and  confirm  them  by  my  oath. 

Will  you  preserve  to  the  church  of  God,  the  clergy,  and 
the  people,  entire  peace  and  harmony  in  God,  according  to 
your  powers'? 

(And  the  king  shall  answer,)  I  will. 

In  all  your  judgments,  will  you  cause  equal  and  right 
justice  and  discretion  to  be  done,  in  mercy  and  truth,  accord¬ 
ing  to  your  powers? 

(And  the  king  shall  answer,)  I  will. 

Do  you  concede  that  the  just  laws  and  customs,  which  the 
common  people  have  chosen ,  shall  be  preserved ;  and  do  you 
promise  that  they  shall  be  protected  by  you,  and  strengthened 
to  the  honor  of  God,  according  to  your  powers? 

(And  the  king  shall  answer,)  I  concede  and  promise.” 

The  language  used  in  the  last  of  these  questions,  “Do  you 
concede  that  the  just  laws  and  customs,  which  the  common 
■people  have  chosen ,  ( quas  vulgus  elegit,)  shall  be  preserved?” 
&c.,  is  worthy  of  especial  notice,  as  showing  that  the  laws, 
which  were  to  be  preserved,  were  not  necessarily  all  the  laws 
which  the  kings  enacted,  but  only  such  of  them  as  the  common 
people  had  selected  or  approved. 

And  how  had  the  common  people  made  known  their  appro¬ 
bation  or  selection  of  these  laws?  Plainly,  in  no  other  way 
than  this  —  that  the  juries  composed  of  the  common  people  had 
voluntarily  enforced  them.  The  common  people  had  no  other 
legal  form  of  making  known  their  approbation  of  particular 
laws. 

The  word  “concede,”  too,  is  an  important  word.  In  the 
English  statutes  it  is  usually  translated  grant  —  as  if  with  an 
intention  to  indicate  that  “the  laws,  customs,  and  liberties” 
of  the  English  people  were  mere  privileges ,  granted  to  them 
by  the  king;  whereas  it  should  be  translated  concede ,  to  indi¬ 
cate  simply  an  acknowledgment ,  on  the  part  of  the  king,  that 
such  were  the  laws,  customs,  and  liberties,  which  had  been 
chosen  and  established  by  the  people  themselves,  and  of  right 
belonged  to  them,  and  which  he  was  bound  to  respect. 

I  will  now  give  some  authorities  to  show  that  the  foregoing 
oath  has,  in  substance,  been  the  coronation  oath  from  the  times 
of  William  the  Conqueror,  (1066,)  down  to  the  time  of  James 
the  First,  and  probably  until  1688. 


THE  CORONATION  OATH. 


105 


It  will  be  noticed,  in  the  quotation  from  Kelham,  that  he 
says  this  oath  (or  the  oath  of  William  the  Conqueror)  is  “in 
sense  and  substance  the  very  same  with  that  which  the  Saxon 
kings  used  to  take  at  their  coronations.” 

Hale  sa.ys  : 

“  Yet  the  English  were  very  zealous  for  them,”  (that  is,  for 
the  laws  of  Edward  the  Confessor,)  “  no  less  or  otherwise  than 
they  are  at  this  time  for  the  Great  Charter;  insomuch  that 
they  were  never  satisfied  till  the  said  laws  were  reenforced, 
and  mingled,  for  the  most  part,  with  the  coronation  oath  of 
king  William  L,  and  some  of  his  successors.”  —  1  Hule's  His¬ 
tory  of  Common  Law ,  157. 

Also,  “  William,  on  his  coronation,  had  sworn  to  govern  by 
the  laws  of  Edward  the  Confessor,  some  of  which  had  been 
reduced  into  writing,  but  the  greater  part  consisted  of  the  im¬ 
memorial  customs  of  the  realm.” — Ditto,  p.  202,  note  L. 

Kelham  says : 

“  Thus  stood  the  laws  of  England  at  the  entry  of  William  I., 
and  it  seems  plain  that  the  laws,  commonly  called  the  laws  of 
Edward  the  Confessor,  were  at  that  time  the  standing  laws  of 
the  kingdom,  and  considered  the  great  rule  of  their  rights  and 
liberties;  and  that  the  English  were  so  zealous  for  them,  ‘that 
they  were  never  satisfied  till  the  said  laws  were  reenforced,  and 
mingled,  for  the  most  part,  with  the  coronation  oath.’  Accord¬ 
ingly,  we  find  that  this  great  conqueror,  at  his  coronation  on 
the  Christmas  day  succeeding  his  victory,  took  an  oath  at  the 
altar  of  St.  Peter,  Westminster,  in  sense  and  substance  the  very 
same  with  that  which  the  Saxon  kings  used  to  take  at  their 
coronations.  *  *  And  at  Barkhamstead,  in  the  fourth  year 
of  his  reign,  in  the  presence  of  Lanfranc,  Archbishop  of  Can¬ 
terbury,  for  the  quieting  of  the  people,  he  swore  that  he  would 
inviolably  observe  the  good  and  approved  ancient  laws  which 
had  been  made  by  the  devout  and  pious  kings  of  England,  his 
ancestors,  and  chiefly  by  King  Edward;  and  we  are  told  that 
the  people  then  departed  in  good  humor.”  —  Kelham' s  Pre¬ 
liminary  Discourse  to  the  Laws  of  William  the  Conqueror. 
See,  also,  1  Hale's  History  of  the  Common  Law ,  1S6. 

Crabbe  says  that  William  the  Conqueror  “solemnly  swore 
that  he  would  observe  the  good  and  approved  laws  of  Edward 
the  Confesser.”  — Crabbe' s  History  of  the  English  Law,  p.  43. 

The  successors  of  William,  up  to  the  time  of  Magna  Carta, 


106 


TRIAL  ET  JURY. 


probably  all  took  the  same  oath,  according  to  the  custom  of 
the  kingdom;  although  there  mat*  be  no  historical  accounts 
extant  of  the  oath  of  each  separate  king.  But  history  tells  us 
specially  that  Henry  I..  Stephen,  and  Henry  II.,  confirmed 
these  ancient  laws  and  customs.  It  appears,  alsa  that  the 
barons  desired  of  John  (what  he  afterwards  granted  by  Mag¬ 
na  Carta)  11  that  the  laics  and  liberties  of  King  Edicard , 
with  other  privileges  granted  to  the  kingdom  and  church  of 
Englaud.  might  be  confirmed,  as  they  were  contained  in  the. 
charters  of  Henry  the  First :  further  alleging,  that  at  the  time 
of  his  absolution,  he  promised  by  his  oath  to  observe  these  very 
laics  and  liberties."  — Eduard’s  History  of  England,  p.  105-6. 

It  would  appear,  from  the  following  authorities,  that  since 
Magna  Carta  the  form  of  the  coronation  oath  has  been  “  to 
maintain  the  laic  of  the  land." — meaning  that  law  as  em¬ 
bodied  in  Magna  Carta.  Or  perhaps  it  is  more  probable  that 
the  ancient  form  has  been  still  observed,  but  that,  as  its  sub¬ 
stance  and  purport  were  “  to  maintain  the  laic  of  the  land."1 
tills  latter  form  of  expression  has  been  used,  in  the  instances 
here  cited,  from  motives  of  brevity  and  convenience.  This 
supposition  is  the  more  probable,  from  the  fact  that  I  find  no 
statute’ prescribing  a  change  in  the  form  of  the  oath  until  16SS. 

That  Magna  Carta  was  considered  as  embodying  “  the  law 
of  the  land,’’  or  “common  law,"  is  shown  by  a  statute  passed 
by  Edward  L.  wherein  he  “grants,"  or  concedes, 

That  the  Charter  of  Liberties  and  the  Charter  of  the  Forest 
*  *  shall  be  kept  in  every  point,  without  breach,  *  *  and 
that  our  justices,  sheriffs,  mayors,  and  other  ministers,  which, 
under  us,  have  the  laics  of  our  land*  to  guide,  shall  allow  the 
said  charters  pleaded  before  them  in  judgment,  in  all  their 
points,  that  is,  to  wit.  the  Great  Charter  as  the  Common  Law , 
and  the  Charter  of  the  Forest  for  the  wealth  of  the  realm. 

“And  we  will,  that  if  any  judgment  be  given  from  hence¬ 
forth,  contrary  to  the  points  of  the  charters  aforesaid,  by  the 
iustices,  or  by  any  other  our  ministers  that  hold  plea  belore 
them  against  the  points  of  the  charters,  it  shall  be  undone, 
and  hoiden  for  naught." — 25  Edward  I.,  ch.  1  and  2.  (1297.) 


*  It  woold  appear,  from  the  text,  that  the  Charter  of  liberties  and  the  Charter  of 
the  Forest  trere  sometimes  called  “laws  of  the  land-59 


THE  CORONATION  OATH. 


107 


Blackstone  also  says : 

“It  is  agreed  by  all  our  historians  that  the  Great  Charter 
of  King  John  was,  for  the  most  part,  compiled  from  the  ancient 
customs  of  the  realm ,  or  the  laws  of  Edward  the  Confessor ; 
by  which  they  usually  mean  the  old  common  law  which  was 
established  under  our  Saxon  princes .”  —  Blackstone' s  Intro¬ 
duction  to  the  Charters.  See  Blackstone' s  Law  Tracts ,  2S9. 

Crabbe  says : 

“It  is  admitted,  on  all  hands,  that  it  (3Iagna  Carta)  con¬ 
tains  nothing  but  what  was  confirmatory  of  the  common  law, 
and  the  ancient  usages  of  the  realm,  and  is.  properly  speaking, 
only  an  enlargement  of  the  charter  of  Henry  I.,  and  his  succes¬ 
sors.” —  Crabbe' s  History  of  the  English  Luw ,  p.  127. 

That  the  coronation  oath  of  the  kings  subsequent  to  Magna 
Carta  was,  in  substance,  if  not  in  form,  “  to  maintain  this  law 
of  the  land,  or  common  law,”  is  shown  by  a  statute  of  Edward 
Third,  commencing  as  follows : 

“Edward,  by  the  Grace  of  God,  &c.,  &c.,  to  the  Sheriff  of 
Stafford,  Greeting:  Because  that  by  divers  complaints  made  to 
us,  we  have  perceived  that  the  laic  of  the  land,  which  we  by 
oath  are  bound  to  maintain,”  $'c.  —  St.  20  Edward  III.  (1346.) 

The  following  extract  from  Lord  Somers’  tract  on  Grand 
Juries  shows  that  the  coronation  oath  continued  the  same  as 
late  as  1616,  (four  hundred  years  after  Magna  Carta.)  He 
says : 

“  King  James,  in  his  speech  to  the  judges,  in  the  Star  Cham¬ 
ber,  Anno  1616,  told  them,  ‘  That  he  had,  after  many  years, 
resolved  to  renew  his  oath,  made  at  his  coronation,  concerning 
justice,  and  the  promise  therein  contained  for  maintaining 
the  law  of  the  land.'  And,  in  the  next  page  save  one,  says, 

‘  I  was  sworn  to  maintain  the  law  of  the  land ,  and  therefore 
had  been  perjured  if  l  had  broken  it.  God  is  my  judge,  I 
never  intended  it.’  ”  ■ — Somers  on  Grand  Juries ,  p.  S2. 

In  168S,  the  coronation  oath  was  changed  by  act  of  Parlia¬ 
ment,  and  the  king  was  made  to  swear: 

“  To  govern  the  people  of  this  kingdom  of  England,  and  the 
dominions  thereto  belonging,  according  to  the  statutes  in  Par¬ 
liament  agreed  on,  and  the  laics  and  customs  of  the  same.”  — 
St.  1  William  and  Mary,  ch.  6.  (16SS.) 


10S 


TRIAL  BY  JURY. 


The  effect  and  legality  of  this  oath  will  hereafter  be  consid¬ 
ered.  For  the  present  it  is  sufficient  to  show,  as  has  been 
already  sufficiently  done,  that  from  the  Saxon  times  until  at 
least  as  lately  as  1616,  the  coronation  oath  has  been,  in  sub¬ 
stance,  to  maintain  the  law  of  the  land ,  or  the  common  law , 
meaning  thereby  the  ancient  Saxon  customs,  as  embodied  in  the 
laws  of  Alfred,  of  Edward  the  Confessor,  and  finally  in  Magna 
Carta. 

It  may  here  be  repeated  that  this  oath  plainly  proves  that 
the  statutes  of  the  king  were  of  no  authority  over  juries,  if 
inconsistent  with  their  ideas  of  right.;  because  it  was  one  part 
of  the  common  law  that  juries  should  try  all  causes  according 
to  their  own  consciences,  any  legislation  of  the  king  to  the 
contrary  notwithstanding.* 


*  As  the  ancient  coronation  oath,  given  in  the  text,  has  come  down  from  the  Saxon 
times,  the  following  remarks  of  Palgrave  will  be  pertinent,  in  connection  with  the 
oath,  as  illustrating  the  fact  that,  in  those  times,  no  special  authority  attached  to  the 
laws  of  the  king  : 

“  The  Imperial  Witenagemot  was  not  a  legislative  assembly,  in  the  strict  sense  of 
the  term,  for  the  whole  Anglo-Saxon  empire.  Promulgating  his  edicts  amidst  his 
peers  and  prelates,  the  king  uses  the  language  of  command ;  but  the  theoretical  pre¬ 
rogative  was  modified  by  usage,  and  the  practice  of  the  constitution  required  that  the 
law  should  be  accepted  by  the  legislatures  (courts)  of  the  several  kingdoms.  *  *  The 

‘  Basileus  ’  speaks  in  the  tone  of  prerogative  :  Edgar  does  not  merely  recommend,  he 
commands  that  the  law  shall  be  adopted  by  all  the  people,  whether  English,  Danes,  or 
Britons,  in  every  part  of  his  empire.  Let  this  statute  be  observed,  he  continues,  by 
Earl  Oslac,  and'all  the  host  who  dwell  under  his  government,  and  let  it  be  transmitted 
by  writ  to  the  ealdormen  of  the  other  subordinate  states.  And  yet,  in  defiance  of  this 
positive  injunction,  the  laws  of  Edgar  were  not  accepted  in  Mercia  until  the  reign  of 
Canute  the  Dane.  It  might  be  said  that  the  course  so  adopted  may  have  been  an  ex¬ 
ception  to  the  general  rule;  but  in  the  scanty  and  imperfect  annals  of  Anglo-Saxon 
legislation,  we  shall  be  able  to  find  so  many  examples  of  similar  proceedings,  that  this 
mode  of  enactment  must  be  considered  as  dictated  by  the  constitution  of  the  empire.  Edward 
was  the  supreme  lord  of  the  Northumbrians,  but  more  than  a  century  elapsed  before 
they  obeyed  his  decrees.  The  laws  of  the  glorious  Athelstane  had  no  effect  in  Kent, 
(county,)  the  dependent  appanage  of  his  crown,  until  sanctioned  by  the  Witan  of  the 
shire  (county  court).  And  the  power  of  Canute  himself,  the  ‘  King  of  all  England,’ 
docs  not  seem  to  have  compelled  the  Northumbrians  to  receive  his  code,  until  the  reign 
of  the  Confessor,  when  such  acceptance  became  a  part  of  the  compact  upon  the  accession 
of  a  new  earl. 

Legislation  constituted  but  a  small  portion  of  the  ordinary  business  transacted  by  the 
Imperial  Witenagemot.  The  wisdom  of  the  assembly  was  shown  in  avoiding  un¬ 
necessary  change.  Consisting  principally  of  traditionary  usages  and  unccstorial  customs , 
the  law  was  upheld  by  opinion.  The  people  considered  their  jurisprudence  as  a  part  of  their 
inheritance.  Their  privileges  and  their  duties  were  closely  conjoined ;  most  frequently, 
the  statutes  themselves  were  only  affirmances  of  ancient  customs,  or  declaratory  enactments. 
In  the  Anglo-Saxon  commonwealth,  therefore,  the  legislative  functions  of  the  Witena¬ 
gemot  were  of  fa'r  less  importance  than  the  other  branches  of  its  authority.  *  *  The 
members  of  the  Witenagemot  were  the  1  Pares  Curim  ’  (Peers  of  Court)  of  the  kingdom. 
How  far,  on  these  occasions,  their  opinion  or  their  equity  controlled  the  power  of  the 
crown,  cannot  be  ascertained.  But  the  form  of  inserting  their  names  in  the  ‘  Testing 
Clause  ’  was  retained  under  the  Anglo-Norman  reigns  ;  and  the  sovereign,  who  sub¬ 
mitted  his  Charter  to  the  judgment  of  the  Proceres,  professed  to  be  guided  by  the 


THE  CORONATION  OATH. 


109 


opinion  which  they  gave.  As  the  ‘  Pares  ’  of  the  empire,  the  Witenagemot  decided 
the  disputes  between  the  great  vassals  of  the  crown.  *  *  The  jurisdiction  exercised 

in  the  Parliament  of  Edward  I.,  when  the  barony  of  a  Lord-Marcher  became  the 
subject  of  litigation,  is  entirely  analogous  to  the  proceedings  thus  adopted  by  the  great 
■council  of  Edward,  the  son  of  Alfred,  the  Anglo-Saxon  king. 

Iu  this  assembly,  the  king,  the  prelates,  the  dukes,  the  ealdormen,  and  the  opti- 
mates  passed  judgment  upon  all  great  offenders.  *  * 

The  sovereign  could  not  compel  the  obedience  of  the  different  nations  composing  the  An¬ 
glo-Saxon  empire.  Hence,  it  became  more  necessary  for  him  to  conciliate  their  opinions, 
if  he  solicited  any  service  from  a  vassal  prince  or  a  vassal  state  beyond  the  ordinary 
terms  of  the  compact;  still  more  so,  when  he  needed  the  support  of  a  free  burgh  or 
city.  And  we  may  view  the  assembly  (the  Witenagemot)  as  partaking  of  the  charac¬ 
ter  of  a  political  congress,  in  whieh  the  liegemen  of  the  crown,  or  the  communities  pro¬ 
tected  by  the  ‘  Basileus,’  (sovereign,)  were  asked  or  persuaded  to  relieve  the  exigences 
of  the  state,  or  to  consider  those  measures  which  might  be  required  for  the  common 
weal.  The  sovereign  was  compelled  to  parley  with  his  dependents, 

It  may  be  doubted  whether  any  one  member  of  the  empire  had  power  to  legislate 
for  any  other  member.  The  Regulus  of  Cumbria  was  unaffected  by  the  vote  of  the 
Earl  of  East  Angli*,  if  he  chose  to  stand  out  against  it.  These  dignitaries  constituted 
a  congress,  in  which  the  sovereign  could  treat  more  conveniently  and  effectually  with 
his  vassals  than  by  separate  negotiations.  *  *  But  the  determinations  of  the  Witan 

bound  those  only  who  were  present,  or  who  concurred  in  the  proposition ;  and  a  vassal 
denying  his  assent  to  the  grant,  might  assert  that  the  engagement  which  he  had  con¬ 
tracted  with  his  superior  did  not  involve  any  pecuniary  subsidy,  but  only  rendered  him 
liable  to  perform  service  in  the  field.”  —  1  Palgrave’s  Rise  and  Progress  of  the  English 
Commonwealth,  637  to  612. 

10 


CHAPTER  IY. 


THE  EIGHTS  AND  DUTIES  OF  JURIES  IN  CIVIL  SUITS. 

The  evidence  already  given  in  the  preceding  chapters  proves 
that  the  rights  and  duties  of  jurors,  in  civil  suits,  were  anciently 
the  same  as  in  criminal  ones;  that  the  laws  of  the  king  were 
of  no  obligation  upon  the  consciences  of  the  jurors,  any  fur¬ 
ther  than  the  laws  were  seen  by  them  to  be  just;  that  very 
few  laws  were  enacted  applicable  to  civil  suits;  that  when  a 
new  law  was  enacted,  the  nature  of  it  could  have  been  known 
to  the  jurors  only  by  report,  and  was  very  likely  not  to  be 
known  to  them  at  all;  that  nearly  all  the  law  involved  in  civil 
suits  was  unwritten  ;  that  there  was  usually  no  one  in  attend¬ 
ance  upon  juries  who  could  possibly  enlighten  them,  unless  it 
were  sheriffs,  stewards,  and  bailiffs,  who  were  unquestionably 
too  ignorant  and  untrustworthy  to  instruct  them  authorita¬ 
tively  ;  that  the  jurors  must  therefore  necessarily  have  judged 
for  themselves  of  the  whole  case;  and  that,  as  a  general  rule, 
they  could  judge  of  it  by  no  law  but  the  law  of  nature,  or  the 
principles  of  justice  as  they  existed  in  their  own  minds. 

The  ancient  oath  of  jurors  in  civil  suits,  viz.,  that  “  they 
would  make  known  the  truth  according  to  their  consciences,11 
implies  that  the  jurors  were  above  the  authority  of  all  legisla¬ 
tion.  The  modern  oath,  in  England,  viz.,  that  they  “  will  well 
and  truly  try  the  issue  between  the  parties ,  and  a  true  verdict 
give,  according  to  the  evidence ,”  implies  the  same  thing.  If 
the  laws  of  the  king  had  been  binding  upon  a  jury,  they 
would  have  been  sworn  to  try  the  cases  according  to  law,  or 
according  to  the  laws. 

The  ancient  writs,  in  civil  suits,  as  given  in  Glanville, 
(within  the  half  century  before  Magna  Carta,)  to  wit,  “Sum¬ 
mon  twelve  free  and  legal  men,  (or  sometimes  twelve  knights,) 
to  be  in  court,  prepared  upon  their  oaths  to  declare  whether  A 


SIGHTS  AND  DUTIES  OF  JURIES  IN  CIVIL  SUITS.  Ill 

or  B  have  the  greater  right  to  the  land  in  question ,”  indicate 
that  the  jurors  judged  of  the  whole  matter  on  their  con¬ 
sciences  only. 

The  language  of  Magna  Carta,  already  discussed,  estab¬ 
lishes  the  same  point;  for,  although  some  of  the  words,  such 
as  “outlawed,”  and  “exiled,”  would  apply  only  to  criminal 
cases,  nearly  the  whole  chapter  applies  as  well  to  civil  as  to 
criminal  suits.  For  example,  how  could  the  payment  of  a 
debt  ever  be  enforced  against  an  unwilling  debtor,  if  he  could 
neither  be  “arrested,  imprisoned,  nor  deprived  of  his  freehold,” 
and  if  the  king  could  neither  “  proceed  against  him,  nor  send 
any  one  against  him,  by  force  or  arms”  1  Yet  Magna  Carta 
as  much  forbids  that  any  of  these  things  shall  be  done  against 
a  debtor,  as  against  a  criminal,  except  according  to,  or  in  exe¬ 
cution  of,  “  a  judgment  of  his  peers ,  or  the  law  of  the  land," 
—  a  provision  which,  it  has  been  shown,  gave  the  jury  the 
free  and  absolute  right  to  give  or  withhold  “judgment” 
according  to  their  consciences,  irrespective  of  all  legislation. 

The  following  provisions,  in  the  Magna  Carta  of  John, 
illustrate  the  custom  of  referring  the  most  important  matters  of 
a  civil  nature,  even  where  the  king  was  a  party,  to  the  deter¬ 
mination  of  the  peers,  or  of  twelve  men,  acting  by  no  rules 
but  their  own  consciences.  These  examples  at  least  show 
that  there  is  nothing  improbable  or  unnatural  in  the  idea  that 
juries  should  try  all  civil  suits  according  to  their  own  judg¬ 
ments,  independently  of  all  laws  of  the  king. 

Chap.  65.  “If  we  have  disseized  or  dispossessed  the  Welsh 
of  any  lands,  liberties,  or  other  things,  without  the  legal  judg¬ 
ment  of  their  peers,  they  shall  be  immediately  restored  to 
them.  And  if  any  dispute  arises  upon  this  head,  the  matter 
shall  be  determined  in  the  Marches,*  by  the  judgment  of  their 
peers,"  &c. 

Chap.  68.  “  We  shall  treat  with  Alexander,  king  of  Scots, 
concerning  the  restoring  of  his  sisters,  and  hostages,  and  rights 
and  liberties,  in  the  same  form  and  manner  as  we  shall  do  to 
the  rest  of  our  barons  of  England  ;  unless  by  the  engage¬ 
ments,  which  his  father  William,  late  king  of  Scots,  hath 
Entered  into  with  us.  it  ought  to  be  otherwise;  and  this  shall 
be  left  to  the  determination  of  his  peers  in  our  court." 


*  Marches,  the  limits,  or  boundaries,  between  England  and  Wales. 


112 


TRIAL  BY  JURY. 


Chap.  56.  !<  All  evil  customs  concerning  forests,  warrens, 
and  foresters,  warreners,  sheriffs,  and  their  officers,  rivers  and 
their  keepers,  shall  forthwith  be  inquired  into  in  each  county, 
by  twelve  knights  of  the  same  shire,  chosen  by  the  most  cred¬ 
itable  persons  in  the  same  county,  and  upon  oath ;  and  within 
forty  days  after  the  said  inquest,  be  utterly  abolished,  so  as 
never  to  be  restored.” 

There  is  substantially  the  same  reason  why  a  jury  ought 
to  judge  of  the  justice  of  laws,  and  hold  all  unjust  laws  in¬ 
valid,  in  civil  suits,  as  in  criminal  ones.  That  reason  is  the 
necessity  of  guarding  against  the  tyranny  of  the  government. 
Nearly  the  same  oppressions  can  be  practised  in  civil  suits  as 
in  criminal  ones.  For  example,  individuals  may  be  deprived- 
of  their  liberty,  and  robbed  of  their  property,  by  judgments 
rendered  in  civil  suits,  as  well  as  in  criminal  ones.  If  the 
laws  of  the  king  were  imperative  upon  a  jury  in  civil  suits,  the 
king  might  enact  laws  giving  one  man’s  property  to  another, 
or  confiscating  it  to  the  king  himself,  and  authorizing  civil  suits 
to  obtain  possession  of  it.  Thus  a  man  might  be  robbed  of  his 
property  at  the  arbitrary  pleasure  of  the  king.  In  fact,  all  the 
property  of  the  kingdom  would  be  placed  at  the  arbitrary  dis¬ 
posal  of  the  king,  through  the  judgments  of  juries  in  civil 
suits,  if  the  laws  of  the  king  were  imperative  upon  a  jury  in 
such  suits.* 


*  That  the  kings  would  have  had  no  scruples  to  enact  laws  for  the  special  purpose  of 
plundering  the  people,  by  means  of  the  judgments  of  juries,  if  they  could  have  got 
juries  to  acknowledge  the  authority  of  their  laws,  is  evident  from  the  audacity  with 
which  they  plundered  them,  without  any  judgments  of  juries  to  authorize  them. 

It  is  not  necessary  to  occupy  space  here  to  give  details  as  to  these  robberies  ;  but 
only  some  evidence  of  the  general  fact. 

Hallam  says,  that  “For  the  first  three  reigns  (of  the  Norman  kings)  *  *  the  intol¬ 
erable  exactions  of  tribute,  the  rapine  of  purveyance,  the  iniquity  of  royal  courts,  are 
continually  in  the  mouths  of  the  historians.  '  God  sees  the  wretched  people,’  says  the 
Saxon  Chronicler,  ‘  most  unjustly  oppressed  ;  first  they  are  despoiled  of  their  posses¬ 
sions,  and  then  butohered.’  This  was  a  grievous  year  (11  ‘24).  Whoever  had  any 
property,  lost  it  by  heavy  taxes  and  unjust  decrees.”  —  2  Middle  Ages,  435-6. 

“  In  the  succeeding  reign  of  John,  all  the  rapacious  exactions  usual  to  these  Norman 
kings  were  not  only  redoubled,  but  mingled  with  outrages  of  tyranny  still  more  intol¬ 
erable.  *  * 

“In  1207  John  took  a  seventh  of  the  movables  of  lay  and  spiritual  persons,  all 
murmuring,  but  none  daring  to  speak  against  it.”  —  Ditto,  446. 

In  Hume’s  account  of  the  extortions  of  those  times,  the  following  paragraph 
occurs ; 

“  But  the  most  barefaced  aots  of  tyranny  and  oppression  were  practised  against  tha 


SIGHTS  AND  DUTIES  OF  JURIES  IN  CIVIL  SUITS. 


113 


Furthermore,  it  would  be  absurd  and  inconsistent  to  make 
a  jury  paramount  to  legislation  in  criminal  suits,  and  subordi¬ 
nate  to  it  in  civil  suits;  because  an  individual,  by  resisting 
the  execution  of  a  civil  judgment,  founded  upon  an  unjust 


Jews,  who  were  entirely  out  of  the  protection  of  the  law,  and  were  abandoned  to  the 
immeasurable  rapacity  of  the  king  and  his  ministers.  Besides  many  other  indignities, 
to  which  they  were  continually  exposed,  it  appears  that  they  were  once  all  thrown  into 
prison,  and  the  sum  of  6(i,000  marks  exacted  for  their  liberty.  At  another  time, 
Isaac,  the  Jew,  paid  alone  5100  marks;  Brun,  3000  marks;  Jurnct,  2000;  Bennet,  500. 
At  another,  Licorica,  widow  of  David,  the  Jew  of  Oxford,  was  required  to  pay  0000 
marks.”  —  Hume's  Hist.  Eng.-,  Appendix  2. 

Further  accounts  of  the  extortions  and  oppressions  of  the  kings  may  be  found  in 
Hume’s  History,  Appendix  2,  and  in  Hallam’s  Middle  Ages,  vol.  2,  p.  435  to  440. 

By  Magna  Carta  John  bound  himself  to  make  restitution  for  some  of  the  spoliations 
he  had  committed  upon  individuals  “ without  the  legal  judgment  of  their  peers.'” —  See 
Magna  Carta  of  John ,  ch.  60,  61,  65  and  66. 

One  of  the  great  charges,  on  account  of  which  the  nation  rose  against  John,  was, 
that  he  plundered  individuals  of  their  property,  “  without  legal  judgment  of  their  peers.” 
Now  it  was  evidently  very  weak  and  short-sighted  in  John  to  expose  himself  to  such 
-charges,  if  his  laws  were  really  obligatory  upon  the  peers  because,  in  that  case,  he  could 
have  enacted  any  laws  that  were  necessary  for  his  purpose,  and  then,  by  civil  suits, 
have  brought  the  cases  -before  juries  for  their  “judgment,”  and  thus  have  accomplished 
all  his  robberies  in  a  perfectly  legal  manner. 

There  would  evidently  have  been  no  sense  in  these  complaints,  that  he  -deprived  men 
of  their  property  “  without  legal  judgment  of  their  peers,”  if  his  laws  had  been  binding 
upon  the  peers;  because  he  could  then  have  made  the  same  spoliations  as  well  with 
the  judgment  of  the  peers  as  without  it.  Taking  the  judgment  of  the  peers  in  the 
matter,  would  have  been  only  a  ridiculous  and  useless  formality,  if  they  were  to 
exercise  no  discretion  or  conscience  of  their  own,  independently  of  the  laws  of  the 
king. 

It  may  here  be  mentioned,  in  passing,  that  the  same  would  be  true  in  criminal  mat¬ 
ters,  if  the  king’s  laws  were  obligatory  upon  juries. 

As  an  illustration  of  what  tyranny  the  kings  would  sometimes  practise,  Hume  says  : 

“It appears  from  the  Great  Charter  itself,  that  not  only  John,  a  tyrannical  prince, 
and  Richard,  a  violent  one,  but  their  father  Henry,  under  whose  reign  the  prevalence 
of  gross  abuses  is  the  least  to  be  suspected,  were  accustomed,  from  their  sole  authority, 
without  process  of  law,  to  imprison,  banish,  and  attaint  the  freemen  of  their  kingdom.” 
—  Hume,  Appendix  2. 

The  provision,  also,  in  the  64th  chapter  of  Magna  Carta,  that  “  all  unjust  and  illegal 
fines,  and  all  amercements,  imposed  unjustly,  and  contrary  to  the  Low  of  the  Land,  shall 
he  entirely  forgiven ,”  Ac.;  and  the  provision,  in  chapter  61,  that  the  king  VV ill  cause 
full  justice  to  be  administered  ”  in  regard  to  “  all  those  things,  of  which  any  person 
has,  without  legal  judgment  of  his  peers,  been  dispossessed  or  deprived,  cither  by  King 
Henry,  our  father,  or  our  brother.  King  Richard,”  indicate  the  tyrannical  practices 
that  prevailed. 

We  are  told  also  that  John  himself  ■“  had  dispossessed  several  great  men  without 
any  judgment  of  their  peers,  condemned  others  to  cruel  deaths,  *  *  insomuch  that 

his  tyrannical  will  stood  instead  of  a  law.”  —  Echard’s  History  of  England,  106. 

Now  all  these  things  were  very  unnecessary  and  foolish,  if  his  laws  were  binding 

10* 


114 


TRIAL  BY  JURY. 


law,  could  give  rise  to  a  criminal  suit,  in  which  the  jury 
would  be  bound  to  hold  the  same  law  invalid.  So  that,  if  an 
unjust  law  were  binding  upon  a  jury  in  civil  suits,  a  defend¬ 
ant,  by  resisting  the  execution  of  the  judgment,  could,  in  effect , 
convert  the  civil  action  into  a  criminal  one,  in  which  the  jury 
would  be  paramount  to  the  same  legislation,  to  which,  in  the 
civil  suit,  they  were  subordinate.  In  other  words,  in  the  crim¬ 
inal  suit,  the  jury  would  be  obliged  to  justify  the  defendant  in 
resisting  a  law,  which,  in  the  civil  suit,  they  had  said  he  was 
bound  to  submit  to. 

To  make  this  point  plain  to  the  most  common  mind  —  sup¬ 
pose  a  law  be  enacted  that  the  property  of  A  shall  be  given  to 
B.  B  brings  a  civil  action  to  obtain  possession  of  it.  If  the 
jury,  in  this  civil  suit,  are  bound  to  hold  the  law  obligatory, 
they  render  a  judgment  in  favor  of  B,  that  he  be  put  in  pos¬ 
session  of  the  property ;  thereby  declaring  that  A  is  bound  to 
submit  to  a  law  depriving  him  of  his  property.  But  when  the 
execution  of  that  judgment  comes  to  be  attempted  —  that  is, 
when  the  sheriff  comes  to  take  the  property  for  the  purpose 
of  delivering  it  to  B  —  A  acting,  as  he  has  a  natural  right  to 
do,  in  defence  of  his  property,  resists  and  kills  the  sheriff.  He 
is  thereupon  indicted  for  murder.  On  this  trial  his  plea  is, 
that  in  killing  the  sheriff,  he  was  simply  exercising  his  natural 
right  of  defending  his  property  against  an  unjust  law.  The 
jury,  not  being  bound,  in  a  criminal  case,  by  the  authority  of 
an  unjust  law,  judge  the  act  on  its  merits,  and  acquit  the  de¬ 
fendant  —  thus  declaring  that  he  was  not  bound  to  submit  to 
the  same  law  which  the  jury,  in  the  civil  suit,  had,  by  their 
judgment,  declared  that  he  was  bound  to  submit  to.  Here  is 
a  contradiction  between  the  two  judgments.  In  the  civil  suit, 
the  law  is  declared  to  be  obligatory  upon  A ;  in  the  criminal 
suit,  the  same  law  is  declared  to  be  of  no  obligation. 


upon  juries;  because,  iu  that  ease,  he  could  have  procured  the  conviction  of  these  men 
in  a  legal  manner,  and  thus  have  saved  the  necessity  of  such  usurpation.  In  short,  if 
the  laws  of  the  king  had  been  binding  upon  jurie3,  there  is  no  robbery,  vengeance,  or 
oppression,  which  he  could  not  have  accomplished  through  the  judgments  of  juries. 
This  consideration  is  sufficient,  of  itself,  to  prove  that  the  laws  of  the  king  were  of  no 
authority  over  a  jury,  in  either  civil  or  criminal  cases,  unless  the  juries  regarded  the 
laws  as  just  in  themselves. 


RIGHTS  AND  DUTIES  OF  JURIES  IN  CIVIL  SUITS. 


115 


It  would  be  a  solecism  and  absurdity  in  government  to 
allow  such  consequences  as  these.  Besides,  it  would  be  prac¬ 
tically  impossible  to  maintain  government  on  such  principles  ; 
for  no  government  could  enforce  its  civil  judgments,  unless  it 
could  support  them  by  criminal  ones,  in  case  of  resistance.  A 
jury  must  therefore  be  paramount  to  legislation  in  both  civil 
and  criminal  cases,  or  in  neither.  If  they  are  paramount  in 
neither,  they  are  no  protection  to  liberty.  If  they  are  para¬ 
mount  in  both,  then  all  legislation  goes  only  for  what  it  may 
chance  to  be  worth  in  the  estimation  of  a  jury. 

Another  reason  why  Magna  Carta  makes  the  discretion  and 
consciences  of  juries  paramount  to  all  legislation  in  civil  suits, 
is,  that  if  legislation  were  binding  upon  a  jury,  the  jurors  — 
(by  reason  of  their  being  unable  to  read,  as  jurors  in  those 
days  were,  and  also  by  reason  of  many  of  the  statutes  being 
unwritten,  or  at  least  not  so  many  copies  written  as  that  juries 
could  be  supplied  with  them)  —  would  have  been  necessitated 
—  at  least  in  those  courts  in  which  the  king’s  justices  sat  —  to 
take  the  word  of  those  justices  as  to  what  the  laws  of  the  king 
really  were.  In  other  words,  they  would  have  been  necessi¬ 
tated  to  take  the  law  from  the  court ,  as  jurors  do  now. 

Now  there  were  two  reasons  why,  as  we  may  rationally 
suppose,  the  people  did  not  wish  juries  to  take  their  law  from 
the  king’s  judges.  One  was,  that,  at  that  day,  the  people 
probably  had  sense  enough  to  see,  (what  we,  at  this  day,  have 
not  sense  enough  to  see,  although  we  have  the  evidence  of  it 
every  day  before  our  eyes,)  that  those  judges,  being  dependent 
upon  the  legislative  power,  (the  king,)  being  appointed  by  it, 
paid  by  it,  and  removable  by  it  at  pleasure,  would  be  mere 
tools  of  that  power,  and  would  hold  all  its  legislation  obliga¬ 
tory,  whether  it  were  just  or  unjust.  This  was  one  reason, 
doubtless,  why  Magna  Carta  made  juries,  in  civil  suits,  para¬ 
mount  to  all  instructions  of  the  king’s  judges.  The  reason 
was  precisely  the  same  as  that  for  making  them  paramount  to 
all  instructions  of  judges  in  criminal  suits,  viz.,  that  the  people 
did  not  choose  to  subject  their  rights  of  property,  and  all  other 
rights  involved  in  civil  suits,  to  the  operation  of  such  laws  as 
the  king  might  please  to  enact.  It  was  seen  that  to  allow  the 
king’s  judges  to  dictate  the  law  to  the  jury  would  be  equiva- 


Ill) 


TRIAL  BY  JURY. 


lent  to  making  the  legislation  of  the  king  imperative  upon  the 
jury. 

Another  reason  why  the  people  did  not  wish  juries,  in  civil 
suits,  to  take  their  law  from  the  king’s  judges,  doubtless  was, 
that,  knowing  the  dependence  of  the  judges  upon  the  king, 
and  knowing  that  the  king  would,  of  course,  tolerate  no  judges 
who  were  not  subservient  to  his  will,  they  necessarily  inferred 
that  the  king’s  judges  would  be  as  corrupt,  in  the  administra¬ 
tion  of  justice,  as  was  the  king  himself,  or  as  he  wished  them 
to  be.  And  how  corrupt  that  was,  may  be  inferred  from  the 
following  historical  facts. 

Hume  says : 

“It  appears  that  the  ancient  kings  of  England  put  them¬ 
selves  entirely  upon  the  footing  of  the  barbarous  Eastern 
princes,  whom  no  man  must  approach  without  a  present,  who 
sell  all  their  good  offices,  and  who  intrude  themselves  into 
every  business  that  they  may  have  a  pretence  for  extorting 
money.  Even  justice  was  avowedly  bought  and  sold ;  the 
king’s  court  itself,  though  the  supreme  judicature  of  the  king¬ 
dom,  was  open  to  none  that  brought  not  presents  to  the  king; 
the  bribes  given  for  expedition,  delay,  suspension,  and  doubt¬ 
less  for  the  perversion  of  justice,  were  entered  in  the  public 
registers  of  the  royal  revenue,  and  remain  as  monuments  of 
the  perpetual  iniquity  and  tyranny  of  the  times.  The  barons 
of  the  exchequer,  for  instance,  the  first  nobility  of  the  kingdom, 
were  not  ashamed  to  insert,  as  an  article  in  their  records,  that 
the  county  of  Norfolk  paid  a  sum  that  they  might  be  fairly 
dealt  with ;  the  borough  of  Yarmouth,  that  the  king’s  charters, 
which  they  have  for  their  liberties,  might  not  be  violated; 
Richard,  son  of  Gilbert,  for  the  king’s  helping  him  to  recover 
his  debt  from  the  Jews;  *  *  Serlo,  son  of  Terlavaston,  that 
he  might  be  permitted  to  make  his  defence,  in  case  he  were 
accused  of  a  certain  homicide;  Walter  de  Burton,  for  free  law, 
if  accused  of  wounding  another;  Robert  de  Essart,  for  having 
an  inquest  to  find  whether  Roger,  the  butcher,  and  Wace  and 
Humphrey,  accused  him  of  robbery  and  theft  out  of  envy  and 
ill-will,  or  not;  William  Buhurst,  for  having  an  inquest  to 
find  whether  he  were  accused  of  the  death  of  one  Godwin,  out 
of  ill-will,  or  for  just  cause.  I  have  selected  these  few  in¬ 
stances  from  a  great  number  of  the  like  kind,  which  Madox 
had  selected  from  a  still  greater  number,  preserved  in  the 
ancient  rolls  of  the  exchequer. 

Sometimes  a  party  litigant  offered  the  king  a  certain  por- 


RIGHTS  AND  DUTIES  OF  JURIES  IN  CIVIL  SUITS. 


117 


tion,  a  half,  a  third,  a  fourth,  payable  out  of  the  debts  which 
he,  as  the  executor  of  justice,  should  assist  in  recovering. 
Theophania  de  Westland  agreed  to  pay  the  half  of  two  hun¬ 
dred  and  twelve  marks,  that  she  might  recover  that  sum 
against  James  de  Fughleston;  Solomon,  the  Jew,  engaged  to 
pay  one  mark  out  of  every  seven  that  he  should  recover  against 
Hugh  de  la  Hose;  Nicholas  Morrel  promised  to  pay  sixty 
pounds,  that  the  Earl  of  Flanders  might  be  distrained  to  pay 
him  three  hundred  and  forty-three  pounds,  which  the  earl 
had  taken  from  him ;  and  these  sixty  pounds  were  to  be  paid 
out  of  the  first  money  that  Nicholas  should  recover  from  the 
earl.”  —  Hume,  Appendix  2. 

“In  the  reign  of  Henry  II.,  the  best  and  most  just  of  these 
(the  Norman)  princes,  *  *  Peter,  of  Blois,  a  judicious  and 
even  elegant  writer,  of  that  age,  gives  a  pathetic  description 
of  (he  venality  of  justice,  and  the  oppressions  of  the  poor,  *  * 
and  he  scruples  not  to  complain  to  the  king  himself  of  these 
abuses.  We  may  judge  what  the  case  would  be  under  the 
government  of  worse  princes.”  — Hume,  Appendix  2. 

Carte  says : 

“  The  crown  exercised  in  those  days  an  exorbitant  and  in¬ 
convenient  power,  ordering  the  justices  of  the  king’s  court,  in 
suits  about  lands,  to  turn  out,  put,  and  keep  in  possession, 
which  of  the  litigants  they  pleased;  to  send  contradictory 
orders;  and  take  large  sums  of  money  from  each;  to  respite 
proceedings;  to  direct  sentences;  and  the  judges,  acting  by 
their  commission,  conceived  themselves  bound  to  observe  such 
orders,  to  the  great  delay,  interruption,  and  preventing  of  jus¬ 
tice;  at  least,  this  was  John’s  practice.”  —  Carte's  History  of 
England,  vol.  1,  p.  832. 

Hallam  says : 

“  But  of  all  the  abuses  that  deformed  the  Anglo-Saxon  gov¬ 
ernment,  none  was  so  flagitious  as  the  sale  of  judicial  redress. 
The  king,  we  are  often  told,  is  the  fountain  of  justice;  but  in 
those  ages  it  was  one  which  gold  alone  could  unseal.  Men 
fined  (paid  fines)  to  have  right  done  them;  to  sue  in  a  certain 
court;  to  implead  a  certain  person;  to  have  restitution  of 
land  which  they  had  recovered  at  law.  From  the  sale  of  that 
justice  which  every  citizen  has  a  right  to  demand,  it  was  an 
easy  transition  to  withhold  or  deny  it.  Fines  were  received 
for  the  king’s  help  against  the  adverse  suitor;  that  is,  for  per¬ 
version  of  justice,  or  for  delay.  Sometimes  they  were  paid 
by  opposite  parties,  and,  of  course,  for  opposite  ends.” — 2 
Middle  Ages,  43S. 


118 


TRIAL  BY  JURY. 


Iu  allusion  to  the  provision  of  Magna  Carta  on  this  subject, 
Hallam  says : 

“A  law  which  enacts  that  justice  shall  neither  be  sold,  de¬ 
nied,  nor  delayed,  stamps  with  infamy  that  government  under 
which  it  had  become  necessary.”  — 2  Middle  Ages,  451. 

Lingard,  speaking  of  the  times  of  Henry  II.,  (say  1184,) 
says : 

“  It  was  universally  understood  that  money  possessed  greater 
influence  than  justice  in  the  royal  courts,  and  instances  are  on 
record,  in  which  one  party  has  made  the  king  a  present  to  ac¬ 
celerate,  and  the  other  by  a  more  valuable  offer  has  succeeded 
in  retarding  a  decision.  *  *  But  besides  the  fines  paid  to  the 
sovereigns,  the  judges  often  exacted  presents  for  themselves , 
and  loud  complaints  existed  against  their  venality  and  in¬ 
justice.” —  2  Lingard ,  231. 

In  the  narrative  of  “  The  costs  and  charges  which  I,  Richard 
de  Anesty,  bestowed  in  recovering  the  land  of  William,  my 
uncle,”  (some  fifty  years  before  Magna  Carta,)  are  the  follow¬ 
ing  items  : 

“To  Ralph,  the  king’s  physician,  I  gave  thirty-six  marks 
and  one  half;  to  the  king  an  hundred  marks;  and  to  the  cpieen 
one  mark  of  gold.”  The  result  is  thus  stated.  “At  last, 
thanks  to  our  lord  the  king,  and  by  judgment  of  his  court,  my 
uncle’s  land  was  adjudged  to  me.” — 2  Palgravds  Rise  and 
Progress  of  the  English  Commonwealth ,  p.  9  and  24. 

Palgrave  also  says : 

“The  precious  ore  was  cast  into  the  scales  of  justice,  even 
when  held  by  the  most  conscientious  of  our  Anglo-Saxon 
kings.  A  single  case  will  exemplify  the  practices  which  pre¬ 
vailed.  Alfric,  the  heir  of  ‘Aylwiu,  the  black,’  seeks  to  set 
aside  the  death-bed  bequest,  by  which  his  kinsman  bestowed 
four  rich  and  fertile  manors  upon  St.  Benedict.  Alfric,  the 
claimant,  was  supported  by  extensive  and  powerful  con¬ 
nexions;  and  Abbot  Alfwine,  the  defendant,  was  well  aware 
that  there  would  be  danger  in  the  discussion  of  the  dispute  in 
public,  or  before  the  Folkmoot,  (people’s  meeting,  or  county 
court) ;  or,  in  other  words,  that  the  Thanes  of  the  shire  would 
do  their  best  to  give  a  judgment  in  favor  of  their  compeer. 
The  plea  being  removed  into  the  Royal  Court,  the  abbot  acted 
with  that  prudence  which  so  often  calls  forth  the  praises  of  the 
monastic  scribe.  He  gladly  emptied  twenty  marks  of  gold 
into  the  sleeve  of  the  Confessor,  (Edward,)  and  five  marks  of 
gold  presented  to  Edith,  the  Fair,  encouraged  her  to  aid  the 


RIGHTS  AND  DUTIES  OF  JURIES  IN  CIVIL  SUITS. 


119 


bishop,  and  to  exercise  her  gentle  influence  in  his  favor.  Al- 
fric,  with  equal  wisdom,  withdrew  from  prosecuting  the  hope¬ 
less  cause,  in  which  his  opponent  might  possess  an  advocate 
in  the  royal  judge,  and  a  friend  in  the  king’s  consort.  Both 
parties,  therefore,  found  it  desirable  to  come  to  an  agreement.” 
—  1  Palgrave’s  Rise  and  Progress,  <Spc.,  p.  650. 

But  Magna  Carta  has  another  provision  for  the  trial  of  civil 
suits,  that  obviously  had  its  origin  in  the  corruption  of  the 
king’s  judges.  The  provision  is,  that  four  knights,  to  be 
chosen  in  every  county,  by  the  people  of  the  county,  shall  sit 
with  the  king’s  judges,  in  the  Common  Pleas,  in  jury  trials, 
(assizes,)  on  the  trial  of  three  certain  kinds  of  suits,  that  were 
among  the  most  important  that  were  tried  at  all.  The  reason 
for  this  provision  undoubtedly  was,  that  the  corruption  and 
subserviency  of  the  king’s  judges  were  so  well  known,  that 
the  people  would  not  even  trust  them  to  sit  alone  in  a  jury  trial 
of  any  considerable  importance.  The  provision  is  this  : 

Chap.  22,  (of  John’s  Charter.)  “Common  Pleas  shall  not 
follow  our  court,  but  shall  be  holden  in  some  certain  place. 
Trials  upon  the  writ  of  novel  disseism,  and  of  Mort  d  'Ancestor, 
and  of  Darrein  Presentment ,  shall  be  taken  but  in  their  proper 
counties,  and  after  this  manner:  We,  or,  if  we  should  be  out 
of  our  realm,  our  chief  justiciary,  shall  send  two  justiciaries 
through  every  county  four  times  a  year;*  who,  with  four 
knights  chosen  out  of  every  shire,  by  the  people ,  shall  hold 
the  assizes  (juries)  in  the  county ,  on  the  day  and  at  the  place 
appointed .” 

It  would  be  very  unreasonable  to  suppose  that  the  king’s 
judges  were  allowed  to  dictate  the  law  to  the  juries,  when  the 
people  would  not  even  suffer  them  to  sit  alone  in  jury  trials, 
but  themselves  chose  four  men  to  sit  with  them,  to  keep  them 
honest,  f 


*  By  the  Magna  Carta  of  Henry  III.  this  is  changed  to  once  a  year, 
t  From  the  provision  of  Magna  Carta,  cited  in  the  text,  it  must  be  inferred  that  there 
can  be  no  legal  trial  by  jury,  in  civil  cases,  if  only  the  king’s  justices  preside  ;  that,  to 
make  the  trial  legal,  there  must  be  other  persons,  chosen  by  the  people,  to  sit  with 
them;  the  object  being  to  prevent  the  jury’s  being  deceived  by  the  justices.  I  think 
we  must  also  infer  that  the  king’s  justices  could  sit  only  in  the  three  actions  specially 
mentioned.  We  cannot  go  beyond  the  letter  of  Magna  Carta,  in  making  innovations 
upon  the  common  law,  which  required  all  presiding  officers  in  jury  trials  to  be  elected 
by  the  people. 


120 


TRIAL  BY  JURY. 


This  practice  of  sending  the  king’s  judges  into  the  counties 
to  preside  at  jury  trials,  was  introduced  by  the  Norman  kings. 
Under  the  Saxons  it  was  not  so.  No  officer  of  the  king  was 
allowed  to  preside  at  a  jury  tr  ial ;  but  only  magistrates  chosen 
by  the  people* 

But  the  following  chapter  of  John’s  charter,  which  imme¬ 
diately  succeeds  the  one  just  quoted,  and  refers  to  the  same 
suits,  affords  very  strong,  not  to  say  conclusive,  proof,  that 
juries  judged  of  the  law  in  civil  suits  —  that  is,  made  the  law, 
so  far  as  their  deciding  according  to  their  own  notions  of  jus¬ 
tice  could  make  the  law. 

Chap.  23.  “  And  if,  on  the  county  day,  the  aforesaid  assizes 
cannot  be  taken,  so  many  knights  and  freeholders  shall  remain , 
of  those  who  shall  have  been  present  on  said  day,  as  that  the 
judgments  may  be  rendered  by  them ,  whether  the  business  be 
more  or  less.” 


*  “  The  earls,  sheriffs,  and  head-boroughs  were  annually  elected  in  the  full  folcmote, 
(people’s  meeting).”  —  Introduction  to  Gilbert’s  History  of  the  Common  Pleas,  p.  2,  note. 

“It  was  the  especial  province  of  the  earldomen  or  earl  to  attend  the  shyre-moeting, 
(the  county  court,)  twice  a  year,  and  there  officiate  as  the  county  judge  in  expounding 
the  secular  laws,  as  appears  by  the  fifth  of  Edgar’s  laws.”  —  Same,  p.  2,  note. 

“  Every  ward  had  its  proper  alderman,  who  was  chosen,  and  not  imposed  by  the 
prince.” —  Same,  p.  4,  text. 

“  As  the  aldermen,  or  earls,  were  always  chosen  ”  (by  the  people)  “  from  among  the 
greatest  thanes,  who  in  those  times  were  generally  more  addicted  to  arms  than  to  letters, 
they  were  but  ill-qualified  for  the  administration  of  justice,  and  performing  the  civil 
duties  of  their  office.”  —  3  Henry’s  History  of  Great  Britain,  343. 

“  But  none  of  these  thanes  were  annually  elected  in  the  full  folcmote,  (people’s 
meeting,)  as  the  earls,  sheriffs,  and  head-boroughs  were;  nor  did  King  Alfred  (as  this 
author  suggests)  deprive  the  people  of  the  election  of  those  last  mentioned  magistrates 
and  nobles,  much  less  did  he  appoint  them  himself.”  —  Iutrod.to  Gilbert’s  Hist.  Com. 
Pleas,  p.  2,  note. 

“  The  sheriff  was  usually  not  appointed  by  the  lord,  but  elected  by  the  freeholders 
of  the  district.”  —  Political  Dictionary,  word  Sheriff. 

“  Among  the  most  remarkable  of  the  Saxon  laws  we  may  reckon  *  *  the  election 
of  their  magistrates  by  the  people,  originally  even  that  of  their  kings,  till  dear-bought 
experience  evinced  the  convenience  and  necessity  of  establishing  an  hereditary  succession 
to  the  crown.  But  that  (the  election)  of  all  subordinate  magistrates,  their  military  officers 
or  heretochs,  their  sheriffs,  their  conservators  of  the  peace,  their  coroners,  their  portreeves, 
(since  changed  into  mayors  and  bailiffs,)  and  even  their  tithing-men  and  borsholders  at 
the  last,  continued,  some,  till  the  Norman  conquest,  others  for  two  centuries  after,  and 
some  remain  to  this  day.”  —  4  Blackstone,  413. 

“The  election  of  sheriffs  was  left  to  the  people,  according  to  ancient  usage."  —  St. 
West.  I,  c.  27.  —  Crabbe’s  History  of  English  Law,  181. 


RIGHTS  AND  DUTIES  OF  JURIES  IN  CIVIL  SUITS. 


121 


The  meaning  of  this  chapter  is,  that  so  many  of  the  civil 
suits,  as  could  not  be  tried  on  the  day  when  the  king’s  justices 
were  present,  should  be  tried  afterwards,  by  the  four  knights 
before  mentioned ,  and  the  freeholders ,  that  is,  the  jury.  It  must 
be  admitted,  of  course,  that  the  juries,  in  these  cases,  judged 
the  matters  of  law,  as  well  as  fact.,  unless  it  be  presumed  that 
the  knights  dictated  the  law  to  the  jury  —  a  thing  of  which 
there  is  no  evidence  at  all. 

As  a  final  proof  on  this  point,  there  is  a  statute  enacted  sev¬ 
enty  years  after  Magna  Carta,  which,  although  it  is  contrary 
to  the  common  law,  and  therefore  void,  is  nevertheless  good 
evidence,  inasmuch  as  it  contains  an  acknowledgment,  on  the 
part  of  the  king  himself,  that  juries  had  a  right  to  judge  of 
the  whole  matter,  law  and  fact,  in  civil  suits.  The  provision 
is  this : 

“  It  is  ordained,  that  the  justices  assigned  to  take  the  assizes, 
shall  not  compel  the  jurors  to  say  precisely  whether  it  be  dis¬ 
seisin,  or  not,  so  that  they  do  show  the  truth  of  the  deed,  and 
seek  aid  of  the  justices.  But  if  they  will,  of  their  own  accord, 
say  that  it  is  disseisin,  or  not,  their  verdict  shall  be  admitted 
at  their  own  peril.”  — 13  Edward  st.  1,  ch.  3,  sec.  2.  (1285.) 

The  question  of  “disseisin,  or  not,”  was  a  question  of  law, 
as  well  as  fact.  This  statute,  therefore,  admits  that  the  law, 
as  well  as  the  fact,  was  in  the  hands  of  the  jury.  The  statute 
is  nevertheless  void,  because  the  king  had  no  authority  to  give 
jurors  a  dispensation  from  the  obligation  imposed  upon  them 
by  their  oaths  and  the  “law  of  the  land,”  that  they  should 
“make  known  the  truth  according  their  (own)  consciences.” 
This  they  were  bound  to  do,  and  there  was  no  power  in  the 
king  to  absolve  them  from  the  duty.  And  the  attempt  of  the 
king  thus  to  absolve  them,  and  authorize  them  to  throw  the 
case  into  the  hands  of  the  judges  for  decision,  was  simply  an 
illegal  and  unconstitutional  attempt  to  overturn  the  “law  of 
the  land,”  which  he  was  sworn  to  maintain,  and  gather  power 
into  his  own  hands,  through  his  judges.  He  had  just  as  much 
constitutional  power  to  enact  that  the  jurors  should  not  be  com¬ 
pelled  to  declare  the  facts ,  but  that  they  might  leave  them  to 
be  determined  by  the  king’s  judges,  as  he  had  to  enact  that  they 
11 


122 


TRIAL  BY  JURY. 


should  not  be  compelled  to  declare  the  law ,  but  might  leave  it 
to  be  decided  by  the  king’s  judges.  It  was  as  much  the  legal 
duty  of  the  jury  to  decide  the  law  as  to  decide  the  fact;  and 
no  law  of  the  king  could  affect  their  obligation  to  do  either. 
And  this  statute  is  only  one  example  of  the  numberless  con¬ 
trivances  and  usurpations  which  have  been  resorted  to,  for  the 
purpose  of  destroying  the  original  and  genuine  trial  by  jury. 


0 


CHAPTER  V. 


OBJECTIONS  ANSWERED 


The  following  objections  will  be  made  to  the  doctrines  and 
She  evidence  presented  in  the  preceding  chapters. 

1.  That  it  is  a  maxim  of  the  law,  that  the  judges  respond 
to  the  question  of  law,  and  juries  only  to  the  question  of  fact. 

The  answer  to  this  objection  is,  that,  since  Magna  Carta, 
judges  have  had  more  than  six  centuries  in  which  to  invent 
and  promulgate  pretended  maxims  to  suit  themselves;  and 
this  is  one  of  them.  Instead  of  expressing  the  law,  it  expresses 
nothing  but  the  ambitious  and  lawless  will  of  the  judges 
themselves,  and  of  those  whose  instruments  they  are.* 

2.  It  will  be  asked,  Of  what  use  are  the  justices,  if  the 
jurors  judge  both  of  law  and  fact  1 

The  answer  is,  that  they  are  of  use,  1.  To  assist  and  en¬ 
lighten  the  jurors,  if  they  can,  by  their  advice  and  informa¬ 
tion  ;  such  advice  and  information  to  be  received  only  for  what 
they  may  chance  to  be  worth  in  the  estimation  of  the  jurors. 
2.  To  do  anything  that  may  be  necessary  in  regard  to  grant¬ 
ing  appeals  and  new  trials. 

3.  It  is  said  that  it  would  be  absurd  that  twelve  ignorant 
men  should  have  power  to  judge  of  the  law,  while  justices 
learned  in  the  law  should  be  compelled  to  sit  by  and  see  the 
law  decided  erroneously. 

One  answer  to  this  objection  is,  that  the  powers  of  juries 


*  Judges  do  not  even  live  up  to  that  part  of  their  own  maxim,  whieh  requires  jurors 
"to  try  the  matter  of  fact.  By  dictating  to  them  the  laws  of  evidence,  —  that  is,  by 
dictating  what  evidence  they  may  hear,  and  what  they  may  not  hear,  and  also  by  dic¬ 
tating  to  them  rules  for  weighing  such  evidence  as  they  permit  them  to  hear,  —  they 
of  necessity  dictate  the  conclusion  to  whieh  they  shall  arrive.  And  thus  the  court 
really  tries  the  question  of  faet,  as  well  as  the  question  of  law,  in  every  cause.  It  is 
clearly  impossible,  in  the  nature  of  things,  for  a  jury  to  try  a  question  of  faet,  without 
trying  every  question  of  law  on  which  the  feet  depends. 


124 


TRIAL  BY  JURY. 


are  not.  granted  to  them  on  the  supposition  that  they  know  the 
law  better  than  the  justices;  but  on  the  ground  that  the  jus¬ 
tices  are  untrustworthy,  that  they  are  exposed  to  bribes,  are 
themselves  fond  of  power  and  authority,  and  are  also  the 
dependent  and  subservient  creatures  of  the  legislature  ;  and 
that  to  allow  them  to  dictate  the  law,  would  not  only  expose 
the  rights  of  parties  to  be  sold  for  money,  but  would  be  equiv¬ 
alent  to  surrendering  all  the  property,  liberty,  and  rights  of  the 
people,  unreservedly  into  the  hands  of  arbitrary  power,  (the 
legislature,)  to  be  disposed  of  at  its  pleasure.  The  powers  of 
juries,  therefore,  not  only  place  a  curb  upon  the  powers  of 
legislators  and  judges,  but  imply  also  an  imputation  upon  their 
integrity  and  trustworthiness  ;  and  these  are  the  reasons  why- 
legislators  and  judges  have  formerly  entertained  the  intensest 
hatred  of  juries,  and,  so  fast  as  they  could  do  it  without 
alarming  the  people  for  their  liberties,  have,  by  indirection, 
denied,  undermined,  and  practically  destroyed  their  power. 
And  it  is  only  since  all  the  real  power  of  juries  has  been  de¬ 
stroyed,  and  they  have  become  mere  tools  in  the  hands  of 
legislators  and  judges,  that  they  have  become  favorites  with 
them. 

Legislators  and  judges  are  necessarily  exposed  to  all  the 
temptations  of  money,  fame,  and  power,  to  induce  them  to 
disregard  justice  between  parties,  and  sell  the  rights,  and  vio¬ 
late  the  liberties  of  the  people.  Jurors,  on  the  other  hand, 
are  exposed  to  none  of  these  temptations.  They  are  not  liable 
to  bribery,  for  they  are  unknown  to  the  parties  until  they 
come  into  the  jury-box.  They  can  rarely  gain  either  fame, 
power,  or  money,  by  giving  erroneous  decisions.  Their  offices 
are  temporary,  and  they  know  that  when  they  shall  have  exe¬ 
cuted  them,  they  must  return  to  the  people,  to  hold  all  their 
own  rights  in  life  subject  to  the  liability  of  such  judgments,  by 
their  successors,  as  they  themselves  have  given  an  example 
for.  The  laws  of  human  nature  do  not  permit  the  supposition 
that  twelve  men,  taken  by  lot  from  the  inass  of  the  people, 
and  acting  under  such  circumstances,  will  all  prove  dishonest. 
It  is  a  supposable  case  that  they  may  not  be  sufficiently  en¬ 
lightened  to  know  and  do  their  whole  duty,  in  all  cases  what¬ 
soever  ;  but  that  they  should  all  prove  dishonesty  is  not  within 


OBJECTIONS  ANSWERED. 


125 


the  range  of  probability.  A  jury,  therefore,  insures  to  us  — 
what  no  other  court  does  —  that  first  and  indispensable 
requisite  in  a  judicial  tribunal,  integrity. 

4.  It  is  alleged  that  if  juries  are  allowed  to  judge  of  the 
law,  thej  decide  the  law  absolutely;  that  their  decision  must 
necessarily  stand,  be  it  right  or  wrong ;  and  that  this  power 
of  absolute  decision  would  be  dangerous  in  their  hands,  by 
reason  of  their  ignorance  of  the  law. 

One  answer  is,  that  this  power,  which  juries  have  of  judg¬ 
ing  of  the  law,  is  not  a  power  of  absolute  decision  in  all  cases. 
For  example,  it  is  a  power  to  declare  imperatively  that  a 
man’s  property,  liberty,  or  life,  shall  not  be  taken  from  him  ; 
but  it  is  not  a  power  to  declare  imperatively  that  they  shall  be 
taken  from  him. 

Magna  Carta  does  not  provide  that  the  judgments  of  the 
peers  shall  be  executed  ;  but  only  that  no  other  than  their  judg¬ 
ments  shall  ever  be  executed,  so  far  as  to  take  a  parly's  goods , 
rights ,  or  person ,  thereon. 

A  judgment  of  the  peers  may  be  reviewed,  and  invalidated, 
and  a  new  trial  granted.  So  that  practically  a  jury  has  no 
•absolute  power  to  take  a  party’s  goods,  rights,  or  person. 
They  have  only  an  absolute  veto  upon  their  being  taken  by 
the  government.  The  government  is  not  bound  to  do  every¬ 
thing  that  a  jury  may  adjudge.  It  is  only  prohibited  from 
doing  anything  —  (that  is,  from  taking  a  party’s  goods,  rights, 
or  person)  —  unless  a  jury  have  first  adjudged  it  to  be  done. 

But  it  will,  perhaps,  be  said,  that  if  an  erroneous  judgment 
of  one  jury  should  be  reaffirmed  by  another,  on  a  new  trial, 
it  must  then  be  executed.  But  Magna  Carta  does  not  com¬ 
mand  even  this — although  it  might,  perhaps,  have  been  rea¬ 
sonably  safe  for  it  to  have  done  so  —  for  if  two  juries  unan¬ 
imously  affirm  the  same  thing,  after  all  the  light  and  aid  that 
judges  and  lawyers  can  afford  them,  that  fact  probably  fur¬ 
nishes  as  strong  a  presumption  in  favor  of  the  correctness  of 
their  opinion,  as  can  ordinarily  be  obtained  in  favor  of  a 
judgment,  by  any  measures  of  a  practical  character  for  the 
administration  of  justice.  Still,  there  is  nothing  in  Magna 
Carta  that  compels  the  execution  of  even  a  second  judgment 
•of  a  jury.  The  only  injunction  of  Magna  Carta  upon  the 
11* 


126 


TRIAL  BY  JURY. 


government,  as  to  what  it  shall  do,  on  this  point,  is  that  it 
shall  “do  justice  and  right,”  without  sale,  denial,  or  delay. 
But  this  leaves  the  government  all  power  of  determining  what 
is  justice  and  right,  except  that  it  shall  not  consider  anything 
as  justice  and  right  —  so  far  as  to  carry  it  into  execution 
against  the  goods,  rights,  or  person  of  a  party  —  unless  it  be 
something  which  a  jury  have  sanctioned. 

If  the  government  had  no  alternative  but  to  execute  all 
judgments  of  a  jury  indiscriminately,  the  power  of  juries 
would  unquestionably  be  dangerous:  for  there  is  no  doubt  that 
they  may  sometimes  give  hasty  and  erroneous  judgments.  But 
when  it  is  considered  that  their  judgments  can  be  reviewed, 
and  new  trials  granted,  this  danger  is,  for  all  practical  pur¬ 
poses,  obviated. 

If  it  be  said  that  juries  may  successively  give  erroneous 
judgments,  and  that  new  trials  cannot  be  granted  indefinitely, 
the  answer  is,  that  so  far  as  Magna  Carta  is  concerned,  there 
is  nothing  to  prevent  the  granting  of  new  trials  indefinitely,  if 
the  judgments  of  juries  are  contrary  to  “justice  and  right.” 
So  that  Magna  Carta  does  not  require  any  judgment  what¬ 
ever  to  be  executed  — so  far  as  to  take  a  party’s  goods,  rights, 
or  person,  thereon  —  unless  it  be  concurred  in  by  both  court 
and  jury. 

Nevertheless,  we  may,  for  the  sake  of  the  argument,  sup¬ 
pose  the  existence  of  a  practical ,  if  not  legal ,  necessity,  for 
executing  some  judgment  or  other,  in  cases  where  juries  per¬ 
sist  in  disagreeing  with  the  courts.  In  such  cases,  the  principle 
of  Magna  Carta  unquestionably  is,  that  the  uniform  judg¬ 
ments  of  successive  juries  shall  prevail  over  the  opinion  of  the 
court.  And  the  reason  of  this  principle  is  obvious,  viz.,  that 
it  is  the  will  of  the  country,  and  not  the  will  of  the  court,  or 
the  government,  that  must  determine  what  laws  shall  be  estab¬ 
lished  and  enforced;  that  the  concurrent  judgments  of  success¬ 
ive  juries,  given  in  opposition  to  all  the  reasoning  which 
judges  and  lawyers  can  offer  to  the  contrary,  must  necessa¬ 
rily  be  presumed  to  be  a  truer  exposition  of  the  will  of  the 
country,  than  are  the  opinions  of  the  judges. 

But  it  may  be  said  that,  unless  jurors  submit  to  the  control 
of  the  court,  in  matters  of  law,  they  may  disagree  among 


OBJECTIONS  ANSWERED. 


127 


themselves,  and  never  come  to  any  judgment;  and  thus  justice 
fail  to  be  done. 

Such  a  case  is  perhaps  possible;  but,  if  possible,  it  can  occur 
but  rarely;  because,  although  one  jury  may  disagree,  a  suc¬ 
cession  of  juries  are  not  likely  to  disagree  —  that  is,  on  matters 
of  natural  law ,  or  abstract  justice .*  If  such  a  thing  should 
occur,  it  would  almost  certainly  be  owing  to  the  attempt  of 
the  court  to  mislead  them.  It  is  hardly  possible  that  any 
other  cause  should  be  adequate  to  produce  such  an  effect ;  be¬ 
cause  justice  comes  very  near  to  being  a  self-evident  principle. 
The  mind  perceives  it  almost  intuitively.  If,  in  addition  to  this, 
the  court  be  uniformly  on  the  side  of  justice,  it  is  not  a  reason¬ 
able  supposition  that  a  succession  of  juries  should  disagree 
about  it.  If,  therefore,  a  succession  of  juries  do  disagree  on 
the  law  of  any  case,  the  presumption  is,  not  that  justice  fails 
of  being  done,  but  that  injustice  is  prevented  —  that  injustice, 
which  would  be  done,  if  the  opinion  of  the  court  were  suffered 
to  control  the  jury. 

For  the  sake  of  the  argument,  however,  it  may  be  admitted 
to  be  possible  that  justice  should  sometimes  fail  of  being  done 
through  the  disagreements  of  jurors,  notwithstanding  all  the 
light  which  judges  and  lawyers  can  throw  upon  the- question 
in  issue.  If  it  be  asked  what  provision  the  trial  by  jury 
makes  for  such  cases,  the  answer  is,  it  makes  none ;  and  jus¬ 
tice  must  fail  of  being  done,  from  the  want  of  its  being  made 
sufficiently  intelligible. 

Under  the  trial  by  jury,  justice  can  never  be  done  —  that  is, 
by  a  judgment  that  shall  take  a  party’s  goods,  rights,  or  per¬ 
son  —  until  that  justice  can  be  made  intelligible  or  perceptible 
to  the  minds  of  all  the  jurors ;  or,  at  least,  until  it  obtain  the 
voluntary  assent  of  all  —  an  assent,  which  ought  not  to  be 
given  until  the  justice  itself  shall  have  become  perceptible 
to  all. 


*  Most  disagreements  of  juries  are  on  matters  of  fact,  which  are  admitted  to  be  with¬ 
in  their  province.  We  have  little  or  no  evidence  of  their  disagreements  on  matters  of 
natural  justice.  The  disagreements  of  courts  on  matters  of  law,  afford  little  or  no 
evidence  that  juries  would  also  disagree  on  matters  of  law  —  that  is,  of  justice  ;  be¬ 
cause  the  disagreements  of  courts  are  generally  on  matters  of  legislation,  and  not  on 
those  principles  of  abstract  justice,  by  which  juries  would  be  governed,  and  in  regard 
to  which  the  minds  of  men  are  nearly  unanimous. 


12S 


TRIAL  BY  JURY. 


The  principles  of  the  trial  by  jury,  then,  are  these: 

1.  That,  in  criminal  cases,  the  accused  is  presumed  inno¬ 
cent. 

2.  That,  in  civil  cases,  possession  is  presumptive  proof  of 
property;  or,  in  other  words,  every  man  is  presumed  to  be  the 
rightful  proprietor  of  whatever  he  has  in  his  possession. 

3.  That  these  presumptions  shall  be  overcome,  in  a  court 
of  justice,  only  by  evidence,  the  sufficiency  of  which,  and 
by  law,  the  justice  of  which,  are  satisfactory  to  the  under¬ 
standing  and  consciences  of  all  the  jurors. 

These  are  the  bases  on  which  the  trial  by  jury  places  the 
property,  liberty,  and  rights  of  every  individual. 

But  some  one  will  say,  if  these  are  the  principles  of  the 
trial  by  jury,  then  it  is  plain  that  justice  must  often  fail  to  be 
done.  Admitting,  for  the  sake  of  the  argument,  that  this  may 
be  true,  the  compensation  for  it  is,  that  positive  injustice  will 
also  often  fail  to  be  done ;  whereas  otherwise  it  would  be  done 
frequently.  The  very  precautions  used  to  prevent  injustice 
being  done,  may  often  have  the  effect  to  prevent  justice  being 
done.  But  are  we,  therefore,  to  take  no  precautions  against 
injustice?  By  no  means,  all  will  agree.  The  question  then 
arises  —  Does  the  trial  by  jury,  as  here  explained ,  involve 
such  extreme  and  unnecessary  precautions  against  injustice,  as 
to  interpose  unnecessary  obstacles  to  the  doing  of  justice  ? 
Men  of  different  minds  may  very  likely  answer  this  question 
differently,  according  as  they  have  more  or  less  confidence  in 
the  wisdom  and  justice  of  legislators,  the  integrity  and  inde¬ 
pendence  of  judges,  and  the  intelligence  of  jurors.  This 
much,  however,  may  be  said  in  favor  of  these  precautions, 
viz.,  that  the  history  of  the  past,  as  well  as  our  constant  pres¬ 
ent  experience,  prove  how  much  injustice  may,  and  certainly 
will,  be  done,  systematically  and  continually,  for  the  want  of 
these  precautions  —  that  is,  while  the  law  is  authoritatively 
made  and  expounded  by  legislators  and  judges.  On  the  other 
hand,  we  have  no  such  evidence  of  how  much  justice  may 
fail  to  be  done,  by  reason  of  these  precautions  —  that  is,  by 
reason  of  the  law  being  left  to  the  judgments  and  consciences 
of  jurors.  We  can  determine  the  former  point  —  that  is,  how 
much  positive  injustice  is  done  under  the  first  of  these  two 


OBJECTIONS  ANSWERED. 


129 


systems  —  because  the  system  is  in  full  operation ;  but  we 
cannot  determine  how  much  justice  would  fail  to  be  done 
under  the  latter  system,  because  we  have,  in  modern  times, 
had  no  experience  of  the  use  of  the  precautions  themselves. 
In  ancient  times,  when  these  precautions  were  nominally  in 
force,  such  was  the  tyranny  of  kings,  and  such  the  poverty, 
ignorance,  and  the  inability  of  concert  and  resistance,  on  the 
part  of  the  people,  that  the  system  had  no  full  or  fair  opera¬ 
tion.  It,  nevertheless,  under  all  these  disadvantages,  impressed 
itself  upon  the  understandings,  and  imbedded  itself  in  the 
hearts,  of  the  people,  so  as  no  other  system  of  civil  liberty  has 
ever  done. 

But  this  view  of  the  two  systems  compares  only  the  injus¬ 
tice  done,  and  the  justice  omitted  to  be  done,  in  the  individual 
cases  adjudged,  without  looking  beyond  them.  And  some 
persons  might,  on  first  thought,  argue  that,  if  justice  failed  of 
being  done  under  the  one  system,  oftener  than  positive  injus¬ 
tice  were  done  under  the  other,  the  balance  was  in  favor  of 
the  latter  system.  But  such  a  weighing  of  the  two  systems 
against  each  other  gives  no  true  idea  of  their  comparative 
merits  or  demerits ;  for,  possibly,  in  this  view  alone,  the  balance 
would  not  be  very  great  in  favor  of  either.  To  compare,  or 
rather  to  contrast,  the  two,  we  must  consider  that,  under  the 
jury  system,  the  failures  to  do  justice  would  be  only  rare  and 
exceptional  cases;  and  would  be  owing  either  to  the  intrinsic 
difficulty  of  the  questions,  or  to  the  fact  that  the  parties  had 
transacted  their  business  in  a  manner  unintelligible  to  the 
jury,  and  the  effects  would  be  confined  to  the  individual  or 
individuals  interested  in  the  particular  suits.  No  permanent 
law  would  be  established  thereby  destructive  of  the  rights  of 
the  people  in  other  like  cases.  And  the  people  at  large  would 
continue  to  enjoy  all  their  natural  rights  as  before.  But  under 
the  other  system,  whenever  an  unjust  law  is  enacted  by  the 
legislature,  and  the  judge  imposes  it  upon  the  jury  as  author¬ 
itative,  and  they  give  a  judgment  in  accordance  therewith,  the 
authority  of  the  law  is  thereby  established,  and  the  whole 
people  are  thus  brought  under  the  yoke  of  that  law;  because 
they  then  understand  that  the  law  will  be  enforced  against 
them  in  future,  if  they  presume  to  exercise  their  rights,  or 


H30 


TRIAL  BY  JURY. 


refuse  to  comply  with  the  exactions  of  the  law.  In  this  man¬ 
ner  all  unjust  laws  are  established,  and  made  operative  against 
the  rights  of  the  people. 

The  difference,  then,  between  the  two  systems  is  this  :  Un¬ 
der  the  one  system,  a  jury,  at  distant  intervals,  would  (not 
enforce  any  positive  injustice,  but  only)  fail  of  enforcing  jus¬ 
tice,  in  a  dark  and  difficult  case,  or  in  consequence  of  the 
parties  not  having  transacted  their  business  in  a  manner  intel¬ 
ligible  to  a  jury;  and  the  plaintiff  would  thus  fail  of  obtaining 
what  was  rightfully  due  him.  And  there  the  matter  would 
end,  for  evil ,  though  not  for  good ;  for  thenceforth  parties, 
warned  of  the  danger  of  losing  their  rights,  would  be  careful 
to  transact  their  business  in  a  more  clear  and  intelligible  man¬ 
ner.  Under  the  other  system  —  the  system  of  legislative  and 
judicial  authority  —  positive  injustice  is  not  only  done  in  every 
suit  arising  under  unjust  laws,  —  that  is,  men’s  property, 
liberty,  or  lives  are  not  only  unjustly  taken  on  those  particular 
judgments, —  but  the  rights  of  the  whole  people  are  struck 
down  by  the  authority  of  the  laws  thus  enforced,  and  a  wide- 
SAveeping  tyranny  at  once  put  in  operation. 

But  there  is  another  ample  and  conclusive  answer  to  the 
argument  that  justice  would  often  fail  to  be  done,  if  jurors 
were  allowed  to  be  governed  by  their  own  consciences,  instead 
of  the  direction  of  the  justices,  in  matters  of  laAv.  That  an¬ 
swer  is  this  : 

Legitimate  government  can  be  formed  only  by  the  voluntary 
association  of  all  who  contribute  to  its  support.  As  a  volun¬ 
tary  association,  it  can  have  for  its  objects  only  those  things 
in  which  the  members  of  the  association  are  all  agreed.  If, 
therefore,  there  be  any  justice ,  in  regard  to  which  all  the  par¬ 
ties  to  the  government  are  not  agreed,,  the  objects  of  the  asso¬ 
ciation  do  not  extend  to  it.* 


*  This  is  the  principle  of  all  voluntary  asssociations  whatsoever.  No  voluntary  asso¬ 
ciation  was  ever  formed,  and  in  the  nature  of  things  there  never  can  be  one  formed,  for 
the  accomplishment  of  any  objects  except  those  in  whieh  all  the  parties  to  the  associa/- 
tion  are  agreed.  Government,  therefore,  must  be  kept  within  these  limits,  or  it  is  no 
longer  a  voluntary  association  of  all  who  contribute  to  its  support,  but  a  mere  tyranny 
established  by  a  part  over  the  rest. 

All,  or  nearly  all,  voluntary  associations  give  to  a  majority,  or  to  some  other  portion 
of  the  members  less  than  the  whole,  the  right  to  use  some  limited  discretion  as  to  the 


OBJECTIONS  ANSWERED. 


131 


If  any  of  the  members  wish  more  than  this, —  if  they  claim 
to  have  acquired  a  more  extended  knowledge  of  justice  thara 
is  common  to  all,  and  wish  to  have  their  pretended  discoveries 
carried  into  effect,  in  reference  to  themselves,  —  they  must  either 
form  a  separate  association  for  that  purpose,  or  be  content  to 
wait  until  they  can  make  their  views  intelligible  to  the  people 
at  large.  They  cannot  claim  or  expect  that  the  whole  people 
shall  practise  the  folly  of  taking  on  trust  their  pretended  supe¬ 
rior  knowledge,  and  of  committing  blindly  into  their  hands  all 
their  own  interests,  liberties,  and  rights,  to  be  disposed  of  on 
principles,  the  justness  of  which  the  people  themselves  cannot 
comprehend. 

A  government  of  the  whole,  therefore,  must  necessarily  con¬ 
fine  itself  to  the  administration  of  such  principles  of  law  as 
all  the  people,  who  contribute  to  the  support  of  the  govern¬ 
ment,  can  comprehend  and  see  the  justice  of.  And  it  can  be 
confined  within  those  limits  only  by  allowing  the  jurors,  who 
represent  all  the  parties  to  the  compact,  to  judge  of  the  law, 
and  the  justice  of  the  law,  in  all  cases  whatsoever.  And  if 
any  justice  be  left  undone,  under  these  circumstances,  it  is  a 
justice  for  which  the  nature  of  the  association  does  not  provide, 
which  the  association  does  not  undertake  to  do,  and  which,  as 
an  association,  it  is  under  no  obligation  to  do. 

The  people  at  large,  the  unlearned  and  common  people, 
have  certainly  an  indisputable  right  to  associate  for  the  estab¬ 
lishment  and  maintenance  of  such  a  government  as  they  them¬ 
selves  see  the  justice  of,  and  feel  the  need  of,  for  the  promotion 
of  their  own  interests,  and  the  safety  of  their  own  rights, 
without  at  the  same  time  surrendering  all  their  property,  lib¬ 
erty,  and  rights  into  the  hands  of  men,  who,  under  the  pre¬ 
tence  of  a  superior  and  incomprehensible  knowledge  of  justice, 
may  dispose  of  such  property,  liberties,  and  rights,  in  a 
manner  to  suit  their  own  selfish  and  dishonest  purposes. 


means  to  be  used  to  accomplish  the  ends  in  view;  but  the  ends  themselves  to  be  accom¬ 
plished  are  always  precisely  defined,  and  are  such  as  every  member  necessarily  agrees 
to,  else  he  would  not  voluntarily  join  the  association. 

Justice  is  the  object  of  government,  and  those  who  support  the  government,  must  bo 
agreed  as  to  the  justice  to  be  executed  by  it,  or  they  cannot  rightfully  unite  in  main¬ 
taining  the  government  itself. 


132 


TRIAL  BY  JURY. 


If  a  government  were  to  be  established  and  supported  solely 
by  that  portion  of  the  people  who  lay  claim  to  superior  knowl¬ 
edge,  there  would  be  some  consistency  in  their  saying  that  the 
common  people  should  not  be  received  as  jurors,  with  power 
to  judge  of  the  justice  of  the  laws.  But  so  long  as  the  whole 
people  (or  all  the  male  adults)  are  presumed  to  be  voluntary 
parties  to  the  government,  and  voluntary  contributors  to  its 
support,  there  is  no  consistency  in  refusing  to  any  one  of  them 
more  than  to  another  the  right  to  sit  as  juror,  with  full  power 
to  decide  for  himself  whether  any  law  that  is  proposed  to  be 
enforced  in  any  particular  case,  be  within  the  objects  of  the 
association. 

The  conclusion,  therefore,  is,  that,  in  a  government  formed 
by  voluntary  association,  or  on  the  theory  of  voluntary  asso¬ 
ciation,  and  voluntary  support,  (as  all  the  North  American 
governments  are,)  no  law  can  rightfully  be  enforced  by  the 
association  in  its  corporate  capacity,  against  the  goods, 
rights,  or  person  of  any  individual,  except  it  be  such  as  all 
the  members  of  the  association  agree  that  it  may  enforce.  To 
enforce  any  other  law,  to  the  extent  of  taking  a  man’s 
goods,  rights,  or  person,  would  be  making  some  of  the  parties 
to  the  association  accomplices  in  what  they  regard  as  acts  of 
injustice.  It  would  also  be  making  them  consent  to  what  they 
regard  as  the  destruction  of  their  own  rights.  These  are 
things  which  no  legitimate  system  or  theory  of  government 
can  require  of  any  of  the  parties  to  it. 

The  mode  adopted,  by  the  trial  by  jury,  for  ascertaining 
whether  all  the  parties  to  the  government  do  approve  of  a  par¬ 
ticular  law,  is  to  take  twelve  men  at  random  from  the  whole 
people,  and  accept  their  unanimous  decision  as  representing 
the  opinions  of  the  whole.  Even  this  mode  is  not  theoretically 
accurate;  for  theoretical  accuracy  would  require  that  every 
man,  who  was  a  party  to  the  government,  should  individually 
give  his  consent  to  the  enforcement  of  every  law  in  every  sep¬ 
arate  case.  But  such  a  thing  would  be  impossible  in  practice. 
The  consent  of  twelve  men  is  therefore  taken  instead;  with 
the  privilege  of  appeal,  and  (in  case  of  error  found  by  the 
the  appeal  court)  a  new  trial,  to  guard  against  possible  mis¬ 
takes.  This  system,  it  is  assumed,  will  ascertain  the  sense  of 


OBJECTIONS  ANSWERED. 


133 


the  whole  people  —  “  the  country  ”  —  with  sufficient  accuracy 
for  all  practical  purposes,  and  with  as  much  accuracy  as  is 
practicable  without  too  great  inconvenience  and  expense. 

5.  Another  objection  that  will  perhaps  be  made  to  allowing 
jurors  to  judge  of  the  law,  and  the  justice  of  the  law,  is,  that 
the  law  would  be  uncertain. 

If,  by  this  objection,  it  be  meant  that  the  law  would  be  un¬ 
certain  to  the  minds  of  the  people  at  large,  so  that  they  would 
not  know  what  the  juries  would  sanction  and  what  condemn, 
and  would  not  therefore  know  practically  what  their  own 
rights  and  liberties  were  under  the  law,  the  objection  is  thor¬ 
oughly  baseless  and  false.  No  system  of  law  that  was  ever 
devised  could  be  so  entirely  intelligible  and  certain  to  the 
minds  of  the  people  at  large  as  this.  Compared  with  it,  the 
complicated  systems  of  law  that  are  compounded  of  the  law 
of  nature,  of  constitutional  grants,  of  innumerable  and  inces¬ 
santly  changing  legislative  enactments,  and  of  countless  and 
contradictory  judicial  decisions,  with  no  uniform  principle  of 
reason  or  justice  running  through  them,  are  among  the  blind¬ 
est  of  all  the  mazes  in  which  unsophisticated  minds  were  ever 
bewildered  and  lost.  The  uncertainty  of  the  law  under  these 
systems  has  become  a  proverb.  So  great  is  this  uncertainty, 
that  nearly  all  men,  learned  as  well  as  unlearned,  shun  the 
law  as  their  enemy,  instead  of  resorting  to  it  for  protection. 
They  usually  go  into  courts  of  justice,  so  called,  only  as  men 
go  into  battle  —  when  there  is  no  alternative  left  for  them. 
And  even  then  they  go  into  them  as  men  go  into  dark  laby¬ 
rinths  and  caverns — with  no  knowledge  of  their  own,  but 
trusting  wholly  to  their  guides.  Yet,  less  fortunate  than  other 
adventurers,  they  can  have  little  confidence  even  in  their 
guides,  for  the  reason  that  the  guides  themselves  know  little 
of  the  mazes  they  are  threading.  They  know  the  mode  and 
place  of  entrance;  but  what  they  will  meet  with  on  their 
way,  and  what  will  be  the  time,  mode,  place,  or  condition  of 
their  exit ;  whether  they  will  emerge  into  a  prison,  or  not ; 
whether  wholly  naked  and  destitute,  or  not;  whether  with 
their  reputations  left  to  them,  or  not;  and  whether  in  time  or 
eternity  ;  experienced  and  honest  guides  rarely  venture  to  pre¬ 
dict.  Was  there  ever  such  fatuity  as  that  of  a  nation  of  men 
12 


134 


TRIAL  BY  JURY. 


madly  bent  on  building  tip  such  labyrinths  as  these,  for  no> 
other  purpose  than  that  of  exposing  all  their  rights  of  reputa¬ 
tion,  property,  liberty,  and  life,  to  the  hazards  of  being  lost  m 
them,  instead  of  being  content  to  live  in  the  light  of  the  open 
day  of  their  own  understandings  ? 

What  honest,  unsophisticated  man  ever  found  himself  in¬ 
volved  in  a  lawsuit,  that  he  did  not  desire,  of  all  things,  that 
his  cause  might  be  judged  of  on  principles  of  natural  justice, 
as  those  principles  were  understood  by  plain  men  like  himselfl 
He  would  then  feel  that  he  could  foresee  the  result.  These 
plain  men  are  the  men  who  pay  the  taxes,  and  support  the 
government.  Why  should  they  not  have  such  an  administra¬ 
tion  of  justice  as  they  desire,  and  can  understand? 

If  the  jurors  were  to  judge  of  the  law,  and  the  justice  of 
the  law,  there  would  be  something  like  certainty  in  the  ad¬ 
ministration  of  justice,  and  in  the  popular  knowledge  of  the 
law,  and  men  would  govern  themselves  accordingly.  There 
would  be  something  like  certainty,  because  every  man  has 
himself  something  like  definite  and  clear  opinions,  and  also 
knows  something  of  the  opinions  of  his  neighbors,  on  matters 
of  justice.  And  he  would  know  that  no  statute,  unless  it  were 
so  clearly  just  as  to  command  the  unanimous  assent  of  twelve 
men,  who  should  be  taken  at  random  from  the  whole  commu¬ 
nity,  could  be  enforced  so  as  to  take  from  him  his  reputation, 
property,  liberty,  or  life.  What  greater  certainty  can  men 
require  or  need,  as  to  the  laws  under  which  they  are  to  live  1 
If  a  statute  were  enacted  by  a  legislature,  a  man,  in  order  to 
know  what  was  its  true  interpretation,  whether  it  were  consti¬ 
tutional,  and  whether  it  would  be  enforced,  would  not  be 
under  the  necessity  of  waiting  for  years  until  some  suit  had 
arisen  and  been  carried  through  all  the  stages  of  judicial  pro¬ 
ceeding,  to  a  final  decision.  He  would  need  only  to  use  his 
own  reason  as  to  its  meaning  and  its  justice,  and  then  talk 
with  his  neighbors  on  the  same  points.  Unless  he  found  them 
nearly  unanimous  in  their  interpretation  and  approbation  of  it, 
he  would  conclude  that  juries  would  not  unite  in  enforcing  it, 
and  that  it  would  consequently  be  a  dead  letter.  And  he 
would  be  safe  in  coming  to  this  conclusion. 

There  would  be  something  like  certainty  in  the  administra- 


OBJECTIONS  ANSWERED. 


135 


lion  of  justice,  and  in  the  popular  knowledge  of  the  law,  for 
the  further  reason  that  there  would  be  little  legislation,  and 
men’s  rights  would  be  left  to  stand  almost  solely  upon  the  law 
of  nature,  or  what  was  once  called  in  England  “the  common 
laic”  (before  so  much  legislation  and  usurpation  had  become 
incorporated  into  the  common  law,)  —  in  other  words,  upon 
the  principles  of  natural  justice. 

Of  the  certainty  of  this  law  of  nature,  or  the  ancient  English 
common  law,  I  may  be  excused  for  repeating  here  what  I  have 
said  on  another  occasion. 

“Natural  law,  so  far  from  being  uncertain,  when  compared 
with  statutory  and  constitutional  law,  is  the  only  thing  that 
gives  any  certainty  at  all  to  a  very  large  portion  of  our  stat¬ 
utory  and  constitutional  law.  The  reason  is  this.  The  words 
in  which  statutes  and  constitutions  are  written  are  susceptible 
of  so  many  different  meanings,  —  meanings  widely  different 
•from,  often  directly  opposite  to,  each  other,  in  their  bearing 
upon  men’s  rights,  —  that,  unless  there  were  some  rule  of  inter¬ 
pretation  for  determining  which  of  these  various  and  opposite 
meanings  are  the  true  ones,  there  could  be  no  certainty  at  all 
as  to  the  meaning  of  the  statutes  and  constitutions  themselves. 
Judges  could  make  almost  anything  they  should  please  out  of 
them.  Hence  the  necessity  of  a  rule  of  interpretation.  And 
this  rule  is,  that  the  language  of  statutes  and  constitutions 
shall  be  construed,  as  nearly  as  'possible,  consistently  with 
natural  law. 

The  rule  assumes,  what  is  true,  that  natural  law  is  a 
thing  certain  in  itself;  also  that  it  is  capable  of  being  learned. 
It  assumes,  furthermore,  that  it  actually  is  understood  by  the 
legislators  and  judges  who  make  and  interpret  the  written  law. 
Of  necessity,  therefore,  it  assumes  further,  that  they  (the  legis¬ 
lators  and  judges)  are  incompetent  to  make  and  interpret  the 
written  law,  unless  they  previously  understand  the  natural 
law  applicable  to  the  same  subject.  It  also  assumes  that  the 
people  must  understand  the  natural  law,  before  they  can  un¬ 
derstand  the  written  law. 

It  is  a  principle  perfectly  familiar  to  lawyers,  and  one  that 
must  be  perfectly  obvious  to  every  other  man  that  will  reflect 
•a  moment,  that,  as  a  general  rule,  no  one  can  know  what  the 
written  law  is,  until  he  knows  what  it  ought  to  be;  that  men 
are  liable  to  be  constantly  misled  by  the  various  and  conflict¬ 
ing  senses  of  the  same  words,  unless  they  perceive  the  true 
legal  sense  in  which  the  words  ought  to  be  taken.  And  this 
® rue  legal  sense  is  the  sense  that  is  most  nearly  consistent  with 


136 


TRIAL  BY  JURY. 


natural  law  of  any  that  the  words  can  he  made  to  bear,  con¬ 
sistently  with  the  laws  of  language,  and  appropriately  to  the 
subjects  to  which  they  are  applied. 

Though  the  words  contain  the  law,  the  words  themselves 
are  not  the  law.  Were  the  words  themselves  the  law,  each 
single  written  law  would  be  liable  to  embrace  many  different 
laws,  to  wit,  as  many  different  laws  as  there  were  different 
senses,  and  different  combinations  of  senses,  in  which  each 
and  all  the  words  were  capable  of  being  taken. 

Take,  for  example,  the  Constitution  of  the  United  States. 
By  adopting  one  or  another  sense  of  the  single  word  “ free” 
the  whole  instrument  is  changed.  Yet  the  word  free  is  capable 
of  some  ten  or  twenty  different  senses.  So  that,  by  changing 
the  sense  of  that  single  word,  some  ten  or  twenty  different  con¬ 
stitutions  could  be  made  out  of  the  same  written  instrument. 
But  there  are,  we  will  suppose,  a  thousand  other  words  in  the 
constitution,  each  of  Which  is  capable  of  from  two  to  ten  differ¬ 
ent  senses.  So  that,  by  changing  the  sense  of  only  a  single 
word  at  a  time,  several  thousands  of  different  constitutions 
would  be  made.  But  this  is  not  all.  Variations  could  also  be 
made  by  changing  the  senses  of  two  or  more  words  at  a  time, 
and  these  variations  could  be  run  through  all  the  changes  and 
combinations  of  senses  that  these  thousand  words  are  capable 
of.  We  see,  then,  that  it  is  no  more  than  a  literal  truth,  that 
out  of  that  single  instrument,  as  it  now  stands,  without  alter¬ 
ing  the  location  of  a  single  word,  might  be  formed,  by  con¬ 
struction  and  interpretation,  more  different  constitutions  than 
figures  can  well  estimate. 

But  each  written  law,  in  order  to  be  a  law,  must  be  taken 
only  in  some  one  definite  and  distinct  sense;  and  that  definite 
and  distinct  sense  must  be  selected  from  the  almost  infinite 
variety  of  senses  which  its  words  are  capable  of.  How  is  this 
selection  to  be  made?  It  can  be  only  by  the  aid  of  that  per¬ 
ception  of  natural  law,  or  natural  justice,  which  men  naturally 
possess. 

Such,  then,  is  the  comparative  certainty  of  the  natural  and 
the  written  law.  Nearly  all  the  certainty  there  is  in  the  latter, 
so  far  as  it  relates  to  principles,  is  based  upon,  and  derived 
from,  the  still  greater  certainty  of  the  former.  In  fact,  nearly 
all  the  uncertainty  of  the  laws  under  which  we  live,  —  which 
are  a  mixture  of  natural  and  written  laws,  —  arises  from  the 
difficulty  of  construing,  or,  rather,  from  the  facility  of  miscon¬ 
struing,  the  written  law ;  while  natural  law  has  nearly  or 
quite  the  same  certainty  as  mathematics.  On  this  point,  Sir 
William  Jones,  one  of  the  most  learned  judges  that  have  ever 
lived,  learned  in  Asiatic  as  well  as  European  law,  says,  — and 


'OBJECTIONS  ANSWERED, 


137 


the  fact  should  be  kept  forever  in  mind,  as  one  of  the  most 
important  of  all  truths  :  —  “  It  is  pleasing  to  remark  the  simi¬ 
larity ,  or ,  rather ,  the  identity  of  those  conclusions  which,  pure , 
unbiassed  reason ,  in  all  ages  and  nations,  seldom  fails  to  draw, 
in  such  juridical  inquiries  as  are  not  fettered  and  manacled 
by  positive  institutions  ”*  In  short,  the  simple  fact  that  the 
written  law  must  be  interpreted  by  the  natural,  is,  of  itself,  a 
sufficient  confession  of  the  superior  certainty  of  the  latter. 

1  he  written  law,  then,  even  where  it  can  be  construed 
consistently  with  the  natural,  introduces  labor  and  obscurity, 
instead  of  shutting  them  out.  And  this  must  always  be  the 
case,  because  words  do  not  create  ideas,  but  only  recall  them; 
and  the  same  word  may  recall  many  different  ideas.  For  this 
reason,  nearly  all  abstract  principles  can  be  seen  by  the  single 
mind  more  clearly  than  they  can  be  expressed  by  words  to 
another.  This  is  owing  to  the  imperfection  of  language,  and 
the  different  senses,  meanings,  and  shades  of  meaning,  which 
’different  individuals  attach  to  the  same  words,  in  the  same 
circumstances. f 

Where  the  written  law  cannot  be  construed  consistently 
with  the  natural,  there  is  no  reason  why  it  should  ever  be 
enacted  at  all.  It  may,  indeed,  be  sufficiently  plain  and  cer¬ 
tain  to  be  easily  understood  ;  but  its  certainty  and  plainness 
are  but  a  poor  compensation  for  its  injustice.  Doubtless  a  law 
forbidding  men  to  drink  water,  on  pain  of  death,  might  be 
made  so  intelligible  as  to  cut  off  all  discussion  as  to  its 
meaning;  but  would  the  intelligibleness  of  such  a  law  be  any 
equivalent  for  the  right  to  drink  water'l  The  principle  is 
the  same  in  regard  to  all  unjust  laws.  Few  persons  could 


*  Jones  on  Bailments,  133. 

i  Kent,  describing  the  difficulty  of  construing  the  written  law,  says  : 

“  Such  is  the  imperfection  of  language,  and  the  want  of  technical  skill  in  the  makers 
■of  the  law,  that  statutes  often  give  occasion  to  the  most  perplexing  and  distressing 
■doubts  and  discussions,  arising  from  the  ambiguity  that  attends  them.  It  requires 
great  experience,  as  well  as  the  command  of  a  perspicuous  diction,  to  frame  a  law  in 
such  clear  and  precise  terms,  as  to  secure  it  from  ambiguous  expressions,  and  from  all 
■doubts  and  criticisms  upon  its  meaning.”  —  Kent,  4(i0. 

The  following  extract  from  a  speech  of  Lord  Brougham,  in  the  House  of  Lords,  con¬ 
fesses  the  same  difficulty  .: 

“  There  was  another  subject,  well  worthy  of  the  consideration  of  government  during 
the  recess,  —  the  expediency,  or  rather  the  absolute  necessity ,  of  some  arrangement  for  the 
preparation  of  bills,  not  merely  private,  but  public  bills,  in  order  that  legislation  might  be 
■consistent  and  systematic ,  and  that  the  courts  might  not  have  so  large  a  portion  of  their  time 
occupied  in  endeavoring  to  construe  acts  of  Parliament,  in  many  cases  unconstruable,  and  in 
most  cases  difficult  to  be  construed.”  —  Law  Reporter,  1848,  p.  525- 
12* 


138 


TRIAL  BY  JURY. 


reasonably  feel  compensated  for  the  arbitary  destruction  of 
their  rights,  by  having  the  order  for  their  destruction  made 
known  beforehand,  in  terms  so  distinct  and  unequivocal  as  to 
admit  of  neither  mistake  nor  evasion.  Yet  this  is  all  the 
compensation  that  such  laws  offer. 

W  hether,  therefore,  written  laws  correspond  with,  or  differ 
from,  the  natural,  they  are  to  be  condemned.  In  the  first  case, 
they  are  useless  repetitions,  introducing  labor  and  obscurity. 
In  the  latter  case,  they  are  positive  violations  of  men’s  rights. 

There  would  be  substantially  the  same  reason  in  enacting 
mathematics  by  statute,  that  there  is  in  enacting  natural  law. 
Whenever  the  natural  law  is  sufficiently  certain  to  all  men’s 
minds  to  justify  its  being  enacted,  it  is  sufficiently  certain 
to  need  no  enactment.  On  the  other  hand,  until  it  be  thus 
certain,  there  is  danger  of  doing  injustice  by  enacting  it;  it 
should,  therefore,  be  left  open  to  be  discussed  by  anybody  who 
may  be  disposed  to  question  it,  and  to  be  judged  of  by  the 
proper  tribunal,  the  judiciary.* 

It  is  not  necessary  that  legislators  should  enact  natural 
law  in  order  that  it  may  be  known  to  the  people ,  because  that 
would  be  presuming  that  the  legislators  already  understand  it 
better  than  the  people,  — a  fact  of  which  I  am  not  aware  that 
they  have  ever  heretofore  given  any  very  satisfactory  evidence. 
The  same  sources  of  knowledge  on  the  subject  are  open  to  the 
people  that  are  open  to  the  legislators,  and  the  people  must 
be  presumed  to  know  it  as  well  as  they. 

The  objections  made  to  natural  law,  on  the  ground  of  ob¬ 
scurity,  are  wholly  unfounded.  It  is  true,  it  must  be  learned, 
like  any  other  science;  but  it  is  equally  true  that  it  is  very 
easily  learned.  Although  as  illimitable  in  its  applications  as  the 
infinite  relations  of  men  to  each  other,  it  is,  nevertheless,  made 
up  of  simple  elementary  principles,  of  the  truth  and  justice  of 
which  every  ordinary  mind  has  an  almost  intuitive  perception. 
It  is  the  science  of  justice,  —  and  almost  all  men  have  the  same 
perceptions  of  what  constitutes  justice,  or  of  what  justice  re¬ 
quires,  when  they  understand  alike  the  facts  from  which  their 
inferences  are  to  be  drawn.  Men  living  in  contact  with  each 
other,  and  having  intercourse  together,  cannot  avoid  learning 


*  This  condemnation  of  written  laws  must,  of  course,  be  understood  as  applying  only 
to  cases  where  principles  and  rights  are  involved,  and  not  as  condemning  any  govern¬ 
mental  arrangements,  or  instrumentalities,  that  are  consistent  with  natural  right,  and 
which  must  be  agreed  upon  for  the  purpose  of  carrying  natural  law  into  effect.  These 
things  may  be  varied,  as  expediency  may  dictate,  so  only  that  they  be  allowed  to  in¬ 
fringe  no  principle  of  justice.  And  they  must,  of  course,  be  written,  because  they  do 
not  exist  as  fixed  principles,  or  laws  in  nature. 


OBJECTIONS  ANSWERED. 


139 


natural  law.  to  a  very  great  extent,  even  if  they  would.  The 
dealings  of  men  with  men,  their  separate  possessions,  and  their 
individual  wants,  are  continually  forcing  upon  their  minds  the 
questions,  —  Is  this  act  just?  or  is  it  unjust?  Is  this  thing 
mine?  or  is  it  his?  And  these  are  questions  of  natural  law; 
questions,  which,  in  regard  to  the  great  mass  of  cases,  are  an¬ 
swered  alike  by  the  human  mind  everywhere. 

Children  learn  many  principles  of  natural  law  at  a  very 
early  age.  For  example:  they  learn  that  when  one  child  has 
picked  up  an  apple  or  a  flower,  it  is  his,  and  that  his  associates 
must  not  take  it  from  him  against  his  will.  They  also  learn 
that  if  he  voluntarily  exchange  his  apple  or  flower  with  a 
playmate,  for  some  other  article  of  desire,  he  has  thereby  sur¬ 
rendered  his  right  to  it,  and  must  not  reclaim  it.  These  are 
fundamental  principles  of  natural  law,  which  govern  most  of 
the  greatest  interests  of  individuals  and  society  ;  yet  children 
learn  them  earlier  than  they  learn  that  three  and  three  are  six, 
or  five  and  five,  ten.  Talk  of  enacting  natural  law  by  statute, 
that  it  may  be  known!  It  would  hardly  be  extravagant  to 
say,  that,  in  nine  cases  in  ten,  men  learn  it  before  they  have 
learned  the  language  by  which  we  describe  it.  Nevertheless, 
numerous  treatises  are  written  on  it,  as  on  other  sciences. 
The  decisions  of  courts,  containing  their  opinions  upon  the 
almost  endless  variety  of  cases  that  have  come  before  them, 
are  reported ;  and  these  reports  are  condensed,  codified,  and 
digested,  so  as  to  give,  in  a  small  compass,  the  facts,  and  the 
opinions  of  the  courts  as  to  the  law  resulting  from  them.  And 
these  treatises,  codes,  and  digests  are  open  to  be  read  of  all  men. 
And  a  man  has  the  same  excuse  for  being  ignorant  of  arithmetic, 
or  any  other  science,  that  he  has  for  being  ignorant  of  natural 
law.  He  can  learn  it  as  well,  if  he  will,  without  its  being 
enacted,  as  he  could  if  it  were. 

If  our  governments  would  but  themselves  adhere  to  natural 
law,  there  would  be  little  occasion  to  complain  of  the  igno¬ 
rance  of  the  people  in  regard  to  it.  The  popular  ignorance  of 
law  is  attributable  mainly  to  the  innovations  that  have  been 
made  upon  natural  law  by  legislation ;  whereby  our  system 
has  become  an  incongruous  mixture  of  natural  and  statute  law, 
with  no  uniform  principle  pervading  it.  To  learn  such  a  sys¬ 
tem,  —  if  system  it  can  be  called,  and  if  learned  it  can  be,  —  is 
a  matter  of  very  similar  difficulty  to  what  it  would  be  to  learn 
a  system  of  mathematics,  which  should  consist  of  the  mathe¬ 
matics  of  nature,  interspersed  with  such  other  mathematics  as 
might  be  created  by  legislation,  in  violation  of  all  the  natural 
principles  of  numbers  and  quantities. 

But  whether  the  difficulties  of  learning  natural  law  be 


140 


TRIAL  BY  JURY. 


greater  or  less  than  here  represented,  they  exist  in  the  nature 
of  things,  and  cannot  be  removed.  Legislation,  instead  of 
removing,  only  increases  them.  This  it  does  by  innovating 
upon  natural  truths  and  principles,  and  introducing  jargon  and 
contradiction,  in  the  place  of  order,  analogy,  consistency,  and 
uniformity. 

Further  than  this ;  legislation  does  not  even  profess  to 
remove  the  obscurity  of  natural  law.  That  is  no  part  of  its 
object.  It  only  professes  to  substitute  something  arbitrary  in 
the  place  of  natural  law.  Legislators  generally  have  the  sense 
to  see  that  legislation  will  not  make  natural  law  any  clearer 
than  it  is.  Neither  is  it  the  object  of  legislation  to  establish  the 
authority  of  natural  law.  Legislators  have  the  sense  to  see  that 
they  can  add  nothing  to  the  authority  of  natural  law,  and  that 
it  will  stand  on  its  own  authority,  unless  they  overturn  it. 

The  whole  object  of  legislation,  excepting  that  legislation 
which  merely  makes  regulations,  and  provides  instrumentali¬ 
ties  for  carrying  other  laws  into  effect,  is  to  overturn  natural 
law,  and  substitute  for  it  the  arbitrary  will  of  power.  In  other 
words,  the  whole  object  of  it  is  to  destroy  men’s  rights.  At 
least,  such  is  its  only  effect;  and  its  designs  must  be  inferred 
from  its  effect.  Taking  all  the  statutes  in  the  country,  there 
probably  is  not  one  in  a  hundred,  • — -except  the  auxiliary  ones 
just  mentioned,  —  that  does  not  violate  natural  law;  that  does 
not  invade  some  right  or  other. 

Yet  the  advocates  of  arbitrary  legislation  are  continually 
practising  the  fraud  of  pretending  that  unless  the  legislature 
vnalce  the  laws,  the  laws  will  not  be  known.  The  whole  object 
of  the  fraud  is  to  secure  to  the  government  the  authority  of 
making  laws  that  never  ought  to  be  known.” 

In  addition  to  the  authority  already  cited,  of  Sir  William 
Jones,  as  to  the  certainty  of  natural  law,  and  the  uniformity 
of  men’s  opinions  in  regard  to  it,  I  may  add  the  following: 

“There  is  that  great  simplicity  and  plainness  in  the  Com¬ 
mon  Law,  that  Lord  Coke  has  gone  so  far  as  to  assert,  (and 
Lord  Bacon  nearly  seconds  him  in  observing,)  that  ‘he  never 
knew  two  questions  arise  merely  upon  common  law  ;  but  that 
they  were  mostly  owing  to  statutes  ill-penned  and  overladen 
with  provisos.’  ” — 3  Eunomus,  157-8. 

If  it  still  be  said  that  juries  would  disagree,  as  to  what  was 
natural  justice,  and  that  one  jury  would  decide  one  way,  and 
another  jury  another ;  the  answer  is,  that  such  a  thing  is  hardly 
credible,  as  that  twelve  men,  taken  at  random  from  the  people 


OBJECTIONS  ANSWERED. 


141 


at  large,  should  unanimously  decide  a  question  of  natural 
justice  one  way,  and  that  twelve  other  men,  selected  in  the 
same  manner,  should  unanimously  decide  the  same  question 
the  other  way,  unless  they  were  misled  by  the  justices.  If, 
however,  such  things  should  sometimes  happen,  from  any 
cause  whatever,  the  remedy  is  by  appeal,  and  new  trial. 


CHAPTER  YI. 


JURIES  OF  THE  PRESENT  DAY  ILLEGAL. 

It  may  probably  be  safely  asserted  that  there  are,  at  this 
day,  no  legal  juries,  either  in  England  or  America.  And  if 
there  are  no  legal  juries,  there  is,  of  course,  no  legal  trial,  nor 
“judgment,”  by  jury. 

In  saying  that  there  are  probably  no  legal  juries,  I  mean 
that  there  are  probably  no  juries  appointed  in  conformity  with 
the  principles  of  the  common  law. 

The  term  jury  is  a  technical  one,  derived  from  the  common 
law ;  and  when  the  American  constitutions  provide  for  the  trial 
by  jury,  they  provide  for  the  common  laxo  trial  by  jury;  and 
not  merely  for  any  trial  by  jury  that  the  government  itself 
may  chance  to  invent,  and  call  by  that  name.  It  is  the  thing , 
and  not  merely  the  name ,  that  is  guarantied.  Any  legislation, 
therefore,  that  infringes  any  essential  principle  of  the  common 
law,  in  the  selection  of  jurors,  is  unconstitutional ;  and  the 
juries  selected  in  accordance  with  such  legislation  are,  of 
course,  illegal,  and  their  judgments  void. 

It  will  also  be  shown,  in  a  subsequent  chapter,*  that  since 
Magna  Carta,  the  legislative  power  in  England  (whether  king 
or  parliament)  has  never  had  any  constitutional  authority  to 
infringe,  by  legislation,  any  essential  principle  of  the  common 
law  in  the  selection  of  jurors.  All  such  legislation  is  as  much 
unconstitutional  and  void,  as  though  it  abolished  the  trial  by 
jury  altogether.  In  reality  it  does  abolish  it. 

What,  then,  are  the  essential  principles  of  the  common  law, 
controlling  the  selection  of  jurors  1 

They  are  two. 


On  the  English  Constitution. 


JURIES  OF  THE  PRESENT  DAY  ILLEGAL. 


143 


1.  That  all  the  freemen,  or  adult  male  members  of  the 
state,  shall  be  eligible  as  jurors.* 

Any  legislation  which  requires  the  selection  of  jurors  to  be 
made  from  a  less  number  of  freemen  than  the  whole,  makes 
the  jury  selected  an  illegal  one. 

If  a  part  only  of  the  freemen,  or  members  of  the  state,  are 
eligible  as  jurors,  the  jury  no  longer  represent  “the  country,” 
but  only  a  part  of  “  the  country.” 

If  the  selection  of  jurors  can  be  restricted  to  any  less  num¬ 
ber  of  freemen  than  the  whole,  it  can  be  restricted  to  a  very 
small  proportion  of  the  whole;  and  thus  the  government  be 
taken  out  of  the  hands  of  “  the  country,”  or  the  whole  people, 
and  be  thrown  into  the  hands  of  a  few. 

That,  at  common  law,  the  whole  body  of  freemen  were 
eligible  as  jurors,  is  sufficiently  proved,  not  only  by  the  reason 
of  the  thing,  but  by  the  following  evidence  : 

1.  Everybody  must  be  presumed  eligible,  until  the  contrary 
be  shown.  We  have  no  evidence,  that  I  am  aware  of,  of  a 
prior  date  to  Magna  Carta,  to  disprove  that  all  freemen  were 
eligible  as  jurors,  unless  it  be  the  law  of  Ethelred,  which 
requires  that  they  be  elderly  f  men.  Since  no  specific  age  is 
given,  it  is  probable,  I  think,  that  this  statute  meant  nothing 
more  than  that  they  be  more  than  twenty-one  years  old.  If  it 
meant  anything  more,  it  was  probably  contrary  to  the  common 
law,  and  therefore  void. 

2.  Since  Magna  Carta,  we  have  evidence  showing  quite 
conclusively  that  all  freemen,  above  the  age  of  twenty-one 
years,  were  eligible  as  jurors. 

The  Mirror  of  Justices,  (written  within  a  century  after 
Magna  Carta,)  in  the  section  “  Of  Judges ”  —  that  is,  jwors 
—  says : 

“  All  those  who  are  not  forbidden  by  law  may  be  judges 


*  Although  all  the  freemen  are  legally  eligible  as  jurors,  any  one  may  nevertheless 
be  challenged  and  set  aside,  at  the  trial,  for  any  special  personal  disqualification  ;  such 
as  mental  or  physical  inability  to  perform  the  duties;  having  been  convicted,  or  being 
under  charge,  of  crime;  interest,  bias,  <fcc.  But  it  is  clear  that  the  common  law 
allows  none  of  these  points  to  be  determined  by  the  court,  but  only  by  “triers.” 

■j  What  was  the  precise  meaning  of  the  Saxon  word,  which  I  have  here  called  elderly, 
I  do  not  know.  In  the  Latin  translations  it  is  rendered  by  seniores,  which  may  perhaps 
mean  simply  those  who  have  attained  their  majority. 


144 


TRIAL  BY  JURY. 


(jurors).  To  women  it  is  forbidden  by  law  that  they  be 
judges;  aud  thence  it  is,  that  feme  coverts  are  exempted  to  do 
suit  in  inferior  courts.  On  the  other  part,  a  villein  cannot  be  a 
judge,  by  reason  of  the  two  estates,  which  are  repugnants ; 
persons  attainted  of  false  judgments  cannot  be  judges,  nor  in¬ 
fants,  nor  any  under  the  age  of  twenty-one  years,  nor  infected 
persons,  nor  idiots,  nor  madmen,  nor  deaf,  nor  dumb,  nor  par¬ 
ties  in  the  pleas,  nor  men  excommunicated  by  the  bishop,  nor 
criminal  persons.  *  *  And  those  who  are  not  of  the  Chris¬ 

tian  faith  cannot  be  judges,  nor  those  who  are  out  of  the  king’s 
allegiance.”  — Mirror  of  Justices,  59-60. 

In  the  section  “  Of  Inferior  Courts ,”  it  is  said: 

“  From  the  first  assemblies  came  consistories,  which  we  now 
call  courts,  and  that  in  divers  places,  and  in  divers  manners; 
whereof  the  sheriffs  held  one  monthly,  or  every  five  weeks, 
according  to  the  greatness  or  largeness  of  the  shires.  And 
these  courts  are  called  county  courts,  where  the  judgment  is  by 
the  suitors,  if  there  be  no  writ,  and  is  by  warrant  of  jurisdic¬ 
tion  ordinary.  The  other  inferior  courts  are  the  courts  of 
every  lord  of  the  fee,  to  the  likeness  of  the  hundred  courts. 
*  *  There  are  other  inferior  courts  which  the  bailiffs  hold 

in  every  hundred,  from  three  weeks  to  three  weeks,  by  the 
suitors  of  the  freeholders  of  the  hundred.  All  the  tenants  with¬ 
in  the  fees  are  bounden  to  do  their  suit  there ,  and  that  not  for 
the  service  of  their  persons,  but  for  the  service  of  their  fees. 
But  women,  infants  within  the  age  of  twenty-one  years,  deaf, 
dumb,  idiots,  those  who  are  indicted  or  appealed  of  mortal 
felony,  before  they  be  acquitted,  diseased  persons,  and  excom¬ 
municated  persons  are  exempted  from  doing  suit.”  —  Mirror 
of  Justices,  50-51. 

In  the  section  “  Of  the  Sheriff's  Turns,”  it  is  said  : 

“  The  sheriffs  by  ancient  ordinances  hold  several  meetings 
twice  in  the  year  in  every  hundred;  where  all  the  freeholders 
within  the  hundred  are  bound  to  appear  for  the  service  of  their 
fees.”  —  Mirror  of  Justices,  50. 

The  following  statute  was  passed  by  Edward  I.,  seventy 
years  after  Magna  Carta  : 

“Forasmuch  also  as  sheriffs,  hundreders,  and  bailiffs  of 
liberties,  have  used  to  grieve  those  which  be  placed  under 
them,  putting  in  assizes  and  juries  men  diseased  and  decrepit, 
and  having  continual  or  sudden  disease ;  and  men  also  that 
dwelled  not  in  the  country  at  the  time  of  the  summons;  and 
summon  also  an  unreasonable  number  of  jurors,  for  to  extort 


JURIES  OF  THE  PRESENT  DAY  ILLEGAL. 


145 


money  from  some  of  them,  for  letting  them  go  in  peace,  and  so 
the  assizes  and  juries  pass  many  times  by  poor  men,  and  the 
rich  abide  at  home  by  reason  of  their  bribes;  it  is  ordained 
that  from  henceforth  in  one  assize  no  more  shall  be  summoned 
than  four  and  twenty;  and  old  men  above  three  score  and  ten 
years,  being  continually  sick,  or  being  diseased  at  the  time  of 
the  summons,  or  not  dwelling  in  that  country,  shall  not  be 
put  in  juries  of  petit  assizes.” — St.  13  Edward  /.,  ch.  38. 
(12S5.) 

Although  this  command  to  the  sheriffs  and  other  officers,  not 
to  summon,  as  jurors,  those  who,  from  age  and  disease,  were 
physically  incapable  of  performing  the  duties,  may  not,  of  itself, 
afford  any  absolute  or  legal  implication,  by  which  we  can 
determine  precisely  who  were,  and  who  were  not,  eligible  as 
jurors  at  common  law,  yet  the  exceptions  here  made  neverthe¬ 
less  carry  a  seeming  confession  with  them  that,  at  common 
law,  all  male  adults  were  eligible  as  jurors. 

But  the  main  principle  of  the  feudal  system  itself  shows 
that  all  the  full  and  free  adult  male  members  of  the  state  — 
that  is,  all  who  were  free  born,  and  had  not  lost  their  civil 
rights  by  crime,  or  otherwise  —  must,  at  common  law,  have 
been  eligible  as  jurors.  What  was  that  principle?  It  was, 
that  the  state  rested  for  support  upon  the  land,  and  not  upon 
taxation  levied  upon  the  people  personally.  The  lands  of  the 
country  were  considered  the  property  of  the  state,  and  were 
made  to  support  the  state  in  this  way.  A  portion  of  them  was 
set  apart  to  the  king,  the  rents  of  which  went  to  pay  his  personal 
and  official  expenditures,  not  including  the  maintenance  of 
armies,  or  the  administration  of  justice.  War  and  the  admin¬ 
istration  of  justice  were  provided  for  in  the  following  manner. 
The  freemen,  or  the  free-born  adult  male  members  of  the 
state  —  who  had  not  forfeited  their  political  rights  —  were  en¬ 
titled  to  land  of  right ,  (until  all  the  land  was  taken  up.)  on 
condition  of  their  rendering  certain  military  and  civil  services 
to  the  state.  The  military  services  consisted  in  serving  per¬ 
sonally  as  soldiers,  or  contributing  an  equivalent  in  horses,  pro¬ 
visions,  or  other  military  supplies.  The  civil  services  consisted, 
among  other  things,  in  serving  as  jurors  (and,  it  would  ap¬ 
pear,  as  witnesses)  in  the  courts  of  justice.  For  these  services 
13 


116 


7K1AL  J'CTRT. 


the)'  received  no  compensation  other  than  the  n se  of  tfieitr 
lands.  In  this  way  the  state  was  sustained;  and  the  king 
had  no  power  to  levy  additional  burdens  or  taxes  upon  the 
people.  The  persons  holding  lands  on  these  terms  were  called 
freeholders — in  later  times  freemen  —  meaning  free  and  full 
members'  of  the  state.  *• 

Now,  as  the  principle  of  the  system  was  that  the  freeholders 
held  their  lands  of  the  state,  on  the  condition  of  rendering 
these  military  and  civil  services  as  rents  for  their  lands,  the 
principle  implies  that  all  the  freeholders  were  liable  to  these 
rents,  and  were  therefore  eligible  as  jurors.  Indeed,.  I  do  not 
know  that  it  has  ever  been  doubted  that,  at  common  law,  all 
the  freeholders  were  eligible  as  jurors.  If  all  had  not  been 
eligible,,  we  unquestionably  should  have  had  abundant  evi¬ 
dence  of  the  exceptions.  And  if  anybody,  at  this  day,  allegp 
any  exceptions,  the  burden  will  be  on  him  to  prove  frierd®  ^The 
presumption  clearly  is  that  all  were  eligible. 

The  first  invasion,  which  I  find  made,  by  the  English  stat¬ 
utes,  upon  this  common  law  principle,  was  made  in  1285, 
seventy  years  after  Magna  Carta.  It  was  then  enacted  as- 
follows : 

“  Nor  shall  any  be  put  in  assizes  or  juries,  though  they 
ought  to  be  taken  in  their  own  shire,  that  hold  a  tenement  of 
less  than  the  value  of  twenty  shillings  yearly:.  And  if  such 
assizes  and  juries  be  taken  out  of  the  shire,  no  one  shall  be 
placed  in  them  who  holds  a  tenement  of  less  value  than  forty 
shillings  yearly  at  the  least,  except  such  as  be  witnesses  in  deeds- 
or  other  writings,  whose  presence  is  necessary,  so  that  they  be 
able  to  travel.”  —  St.  13  Edward  /.,  eh.  38.  (1285.). 

The  next  invasion  of  the  common  law,  in  this  particular,, 
was  made  in  1414,  about  two  hundred  years  after  Magna 
Carta,  when  it  was  enacted' : 

“  That  no  person  shall  be  admitted  to-  pass  in-  any  inquest 
upon  trial  of  the  death  of  a  man,  nor  in  any  inquest  betwixt 
party  and  party  in  plea  real,  nor  in  plea  personal,  whereof  the 
debt  or  the  damage  declared  amount  to  forty  marks,  if  the 
same  person  have  not  lands  or  tenements  of  the  yearly  value- 
of  forty  shillings  ahooe  all  charges  of  the  same.” —  2  Henry  V.y. 
st.  2,  ch.  3.  (1414.) 


TORIES  OF  THE  PRESENT  DAY  ILLEGAL. 


147 


Other  statutes  eu  this  subject  of  the  property  qualifications 
of  jurors,  are  given  in  the  note.* 


*  In  1483  it  was  enacted,  by  a  statute  entitled  “  Of  what  credit  and  estate  those 
jurors  must  be  which  shall  be  impanelled  in  the  Sheriff’s  Turn.” 

“  That  no  bailiff  nor  other  officer  from  henceforth  return  or  im]i»nel  any  such  person 
5n  any  shire  of  England,  to  be  taken  or  put  in  or  upon  any  inquiry  in  any  of  the  said 
Turns,  but  such  as  he  of  good  name  airl  fame,  and  having  lands  and  tenements  of 
freehold  within  the  same  shires,  to  the  yearly  value  of  twenty  shillings  at  the  least,  or 
■else  lands  and  tenements  hoklen  by  custom  of  manor,  commonly  called  copy-hold,  with¬ 
in  the  said  shires,  to  the  yearly  value  of  twenty-six  shillings  eight  pence  over  all 
charges  at  the  least.” —  1  Richard  ILL,  ch.  4-  (1483.) 

In  I486  it  was  enacted,  -“That  the  justices  of  the  pence  of  every  shire  of  this 
realm  for  the  time  being  may  take,  by  their  discretion,  an  inquest,  whereof  every  man 
shall  ha  ve  lands  and  tenements  to  the  yearly  value  oi  forty  shillings  at  the  least,  to  in¬ 
quire  of  the  concealments  of  others,”  Ac.,  Ac.  —  3  Henry  V1L,  eh.  1.  (148(i.) 

A  statute  passed  in  1494,  in  regard  to  jurors  in  the  city  of  London,  enacts: 

■“  That  no  person  nor  persons  hereafter  be  impanelled,  summoned,  or  sworn  in  any 
Jury  or  inquest  in  courts  within  the  same  city,  (of  London,)  except  he  be  of  lands,  ten¬ 
ements,  or  goods  and  chattels,  to  the  value  of  forty  marks ;*  and  that  no  person  or  per¬ 
sons  hereafter  .be  impanelled,  summoned,  nor  sworn  in  any  jury  or  inquest  in  any  court 
within  the  said  city,  for  lauds  or  tenements,  or  action  personal,  wherein  the  debt  or 
damage  amounteth  to  the  sum  <o f  forty  marks,  or  above,  except  he  be  in  lands,  tene¬ 
ments,  goods,  oi’  chattels,  to  the  value  o f  one  hundred  marks.” — -  11  Henry  VII.,  ch.  21. 
(1494.) 

The  statute  4  Henry  VIII.,  eh-  3,  see.  4,  (1512)  requires  jurors  in  London  to  have 
“goods  to  the  value  of  one  hundred  marks.” 

In  1494  rt  was  enacted  that  “It  shall  he  lawful  to  every  sheriff  of  the  counties  of 
Southampton,  Surry,  and  Sussex,  to  impanel  and  .summons  twenty-four  lawful  men  of 
such,  inhabiting  within  the  precinct  of  his  or  their  turns,  as  owe  suit  to  the  same  turn, 
whereof  every  one  hath  lands  or  freehold  to  the  yearly  value  of  ten  shillings,  or  copy¬ 
hold  lands  to  the  yearly  value  of  thirteen  shillings  four  pence,  above  all  charges  within 
any  of  the  said  counties,  or  men  of  less  livelihood,  if  there  be  not  so  many  there,  not¬ 
withstanding  the  statute  of  1  Richard  III.,  eh.  4.  To  endure  to  the  next  parliament.” 
—  11  Henry  VII.,  eh.  26.  (1494.) 

This  statute  was  continued  iu  force  by  19  Henry  VII.,  eh.  1G.  (1503.) 

In  1531  it  was  enacted,  “That  every  person  or  persons,  being  the  king’s  natural 
subject  born,  which  either  by  the  name  of  citizen,  or  of  a  freeman,  or  .any  other  name, 
■doth  enjoy  and  use  the  liberties  and  privileges  of  any  city,  borough,  or  town  corpo¬ 
rate,  where  he  dwelleth  and  maketh  his  abode,  being  worth  in  movable  goods  and  sub¬ 
stance  to  the  clear  value  of  forty  pounds,  he  henceforth  admitted  In  trials  of  murders 
and  felonies  in  every  sessions  and  gaol  delivery,  to  he  kept  and  holden  in  and  for  the 
liberty  of  such  cities,  boroughs,  and  towns  corporate,  albeit  they  have  no  freehold ;  any 
act,  statute,  use,  custom,  or  ordinance  to  the  contrary  hereof  notwithstanding.”  —  23 
Henry  VIII.,  ch.  13.  (1531.) 

In  1585  it  was  enacted,  “  That  in  all  eases  where  any  jurors  to  he  returned  for  trial 
•of  any  issue  or  issues  joined  in  any  of  the  Queen’s  majesty’s  courts  of  King’s  Bench, 
Common  Pleas,  and  the  Exchequer,  or  before  justices  of  assize,  by  the  laws  of  this 
ire  a  l  ill  now  in  force,  ought  to  have  estate  of  freehold  in  lands,  tenements,  or  heredita¬ 
ments,  of  the  clear  yearly  value  of  forty  shillings ,  that  in  every  such  case  the  jurors 
(that  shall  he  returned  from  and  after  the  end  of  this  present  session  of  parliament,  shall 
■every  of  them  have  estate  of  freehold  in  lands,  tenements,  or  hereditaments,  to  the 
■clear  yearly  value  of  four  pounds  at  the  least.”  —  27  F.lizabctk,  ch.  G.  (1585.) 

In  1664-5  it  was  enacted,  “  That  all  jurors  (other  than  strangers  upon  trials  per  mt- 
didatem  lingua:)  who  are  to  he  retur  ned  for  the  trials  of  issues  joined  in  any  of  (his) 

*  A  mark  was  thirteen  shillings  aud  /our  pence. 


148 


TRIAL  BY  JURY. 


From  these  statutes  it  will  be  seen  that,  since  12S5,  seventy 
years  after  Magna  Carta,  the  common  law  right  of  all  free 
British  subjects  to  eligibility  as  jurors  lias  been  abolished,  and 
the  qualifications  of  jurors  have  been  made  a  subject  of  arbi¬ 
trary  legislation.  In  other  words,  the  government  has  usurped 
the  authority  of  selecting  the  jurors  that  were  to  sit  in  judgment 
upon  its  own  acts.  This  is  destroying  the  vital  principle  of 
the  trial  by  jury  itself,  which  is  that  the  legislation  of  the  gov¬ 
ernment  shall  be  subjected  to  the  judgment  of  a  tribunal,  taken 
indiscriminately  from  the  whole  people,  without  any  choice  by 
the  government,  and  over  which  the  government  can  exercise 
no  control.  If  the  government  can  select  the  jurors,  it  will,  of 
course,  select  those  whom  it  supposes  will  be  favorable  to  its 
enactments.  And  an  exclusion  of  any  of  the  freemen  from 
eligibility  is  a  selection  of  those  not  excluded. 

It  will  be  seen,  from  the  statutes  cited,  that  the  most  abso¬ 
lute  authority  over  the  jury  box  —  that  is,  over  the  right  of 
the  people  to  sit  in  juries  —  has  been  usurped  by  the  govern- 


majesty’s  courts  of  king’s  bench,  common  pleas,  or  the  exchequer,  or  before  justices  of 
assize,  or  nisi  prius,  oyer  and  terminer,  gaol  delivery,  or  general  or  quarter  sessions 
of  the  peace,  from  and  after  the  twentieth  day  of  April,  which  shall  be  in  the  year  of 
our  Lord  one  thousand  six  hundred  and  sixty-live,  in  any  county  of  this  realm  of  England* 
shall  every  of  them  then  have,  in  their  own  name,  or  in  trust  for  them*  within  the  same 
county,  twenty  pounds  by  the  year *  at  least*  above  reprises*  in  their  own  or  their  wives* 
right*  of  freehold  lands,  or  of  ancient  demesne,  or  of  rents  in  fee,  fee-tail*  or  for  life. 
And  that  in  every  county  within  the  dominion  of  Wales  every  such  juror  shall  then 
have,  within  the  same,  eight  pounds  by  the  year,  at  the  least,  above  reprises,  in  manner 
aforesaid.  All  which  persons  having  such  estate  as  aforesaid  are  hereby  enabled  and 
made  liable  to  be  returned  and  serve  as  jurors  for  the  trial  of  issues  before  the  justices 
aforesaid,  any  law  or  statute  to  tho  contrary  iu  any  wise  notwithstanding.” —  16  and 
17  Charles  II.,  ch.  3.  (1664—5.) 

By  a  statute  passed  in  1692,  jurors  in  England  are  to  have  landed  estates  of  the 
value  of  ten  pounds  a  year;  and  jurors  in  Wales  to  have  similar  estates  of  the  realm  of 
six  pounds  a  year . —  4  and  5  William  and  Mary,  ch.  24,  sec.  14.  (1692.) 

By  the  same  statute,  (sec,  18,)  persons  may  be  returned  to  serve  upon  the  tales  in 
any  county  of  England,  who  shall  have,  within  the  same  county.  Jive  pounds  by  the  year, 
above  reprises,  in  the  manner  aforesaid. 

By  St.  3  George  II.,  ch.  25,  sec,  19,  20,  no  one  is  to  be  a  juror  in  London,  who  shall 
not  be  “  an  householder  within  tiie  said  city,  and  have  lands,  tenements,  or  personal 
estate,  to  the  value  of  one  hundred  pounds 

By  another  statute,  applicable  only  to  the  county  of  Middlesex ,  it  is  enacted, 

«  That  all  leaseholders,  upon  leases  where  the  improved  rents  or  value  shall  amount 
to  fifty  pounds  or  upwards  pier  annum, over  and  above  all  ground  rents  or  other  reserva¬ 
tions  payable  by  virtue  of  the  said  leases,  shall  be  liable  and  obliged  to  serve  upon 
juries  when  they  shall  be  legally  summoned,  for  that  purpose.”  —  4  George  II,, 
ch.  7,  sec..  3,.  (1731.) 


TORIES  OF  THE  PRESENT  DAY  ILLEGAL. 


140 


snent;  that  the  qualifications  of  jurors  have  been  repeatedly 
changed,  and  made  to  vary  from  a  freehold  of  ten  shillings 
yearly ,  to  one  of  “  twenty  pounds  by  the  year  at  least  above 
reprises .”  They  have  also  been  made  different,  in  the  counties 
of  Southampton,  Surrey,  and  Sussex,  from  what  they  were  in 
the  other  counties;  different  in  Wale.s  from  what  they  were 
in  England;  and  differentia  the  city  of  London,  and  in  the 
county  of  Middlesex,  from  what  they  were  in  any  other  part 
of  the  kingdom. 

But  this  is  not  all.  The  government  has  not  only  assumed 
■arbitrarily  to  classify  the  people,  on  the  basis  of  property,  but 
it  has  even  assumed  to  give  to  some  of  its  judges  entire  and 
absolute  personal  discretion  in  the  selection  of  the  jurors  to  be 
impanelled  in  criminal  cases,  as  the  following  statutes  show. 

“  Be  it  also  ordained  and  enacted  by  the  same  authority,  that 
all  panels  hereafter  to  be  returned,  which  be  not  at  the  suit  of 
any  party,  that  shall  be  made  and  put  in  afore  any  justice  of 
gaol  delivery  or  justices  of  peace  in  their  open  sessions  to  in¬ 
quire  for  the  king ,  shall  hereafter  be  reformed  by  additions  and 
taking  out  of  names  of  persons  by  discretion  of  the  same  jus¬ 
tices  before  whom  such  panel  shall  be  returned  ;  and  the  same 
justices  shall  hereafter  command,  the  sheriff,  or  his  ministers 
in  his  absence ,  to  put  other  persons  in  the  same  panel  by  their 
discretions  ;  and  that  panel  so  hereafter  to  be  made,  to  be  good 
and  lawful.  This  act  to  endure  only  to  the  next  Parliament.” 
— 11  Henry  VII.,  ch.  24,  sec.  6.  (1495.) 

This  act  was  continued  in  force  by  1  Henry  VIII.,  ch.  11, 
(1509,)  to  the  end  of  the  then  next  Parliament. 

It  was  reenacted,  and  made  perpetual,  by  3  Henry  VIII., 
ch.  12.  (1511.) 

These  acts  gave  unlimited  authority  to  the  king's  justices  to 
pack  juries  at  their  discretion  ;  and  abolished  the  last  vestige 
of  the  common  law  right  of  the  people  to  sit  as  jurors,  and  judge 
of  their  own  liberties,  in  the  courts  to  which  the  acts  applied. 

Yet,  as  matters  of  law,  these  statutes  were  no  more  clear 
violations  of  the  common  law,  the  fundamental  and  paramount 
<(law  of  the  land,”  than  were  those  statutes  which  affixed  the 
property  qualifications  before  named ;  because,  if  the  king,  or 
the  government,  can  select  the  jurors  on  the  ground  of  prop¬ 
erty,  it  can  select  them  on  any  other  ground  whatever. 

13* 


150 


TRIAL  BY  JURY. 


Any  infringement  or  restriction  of  the  common  law  right  of 
the  whole  body  of  the  freemen  of  the  kingdom  to  eligibility  as 
jurors,  was  legally  an  abolition  of  the  trial  by  jury  itself.  The 
juries  no  longer  represented  “  the  country,”  but  only  a  part  of 
the  country;  that  part,  too,  on  whose  favor  the  government 
chose  to  rely  for  the  maintenance  of  its  power,  and  which  it 
therefore  saw  fit  to  select  as  being  the  most  reliable  instru¬ 
ments  for  its  purposes  of  oppression  towards  the  rest.  And 
the  selection  was  made  on  the  same  principle,  on  which  tyran¬ 
nical  governments  generally  select  their  supporters,  viz.,  that 
of  conciliating  those  who  would  be  most  dangerous  as  enemies, 
and  most  powerful  as  friends  —  that  is,  the  wealthy.* 

These  restrictions,  or  indeed  any  one  of  them,  of  the  right 
of  eligibility  as  jurors,  was,  in  principle,  a  complete  abolition 
of  the  English  constitution ;  or,  at  least,  of  its  most  vital  and 
•valuable  part.  It  was,  in  principle,  an  assertion  of  a  right,  on 
the  part  of  the  government,  to  select  the  individuals  who  were 
•to  determine  the  authority  of  its  own  laws,  and  the  extent  of 
its  own  powers.  It  was,  therefore,  in  effect ,  the  assertion  of  a 
right,  on  the  part  of  the  government  itself,  to  determine  its 
own  powers,  and  the  authority  of  its  own  legislation,  over  the 
people;  and  a  denial  of  all  right,  on  the  part  of  the  people,  to 
judge  of  or  determine  their  own  liberties  against  the  govern¬ 
ment.  It  was,  therefore,  in  reality,  a  declaration  of  entire 
absolutism  on  the  part  of  the  government.  It  was  an  act  as 
purely  despotic,  in  principle ,  as  would  have  been  the  express 
abolition  of  all  juries  whatsoever.  By  “  the  law  of  the  land,” 
which  the  kings  were  sworn  to  maintain,  every  free  adult 
male  British  subject  was  eligible  to  the  jury  box,  with  full 
power  to  exercise  his  own  judgment  as  to  the  authority  and 
obligation  of  every  statute  of  the  king,  which  might  come 


*  Suppose  these  statutes,  instead  of  disfranchising  all  whose  freeholds  were  of  less 
than  the  standard  value  fixed  by  the  statutes,  had  disfranchised  all  whose  freeholds 
were  of  greater  value  than  the  same  standard  —  would  anybody  ever  have  doubted  that 
such  legislation  was  inconsistent  with  the  English  constitution  ;  or  that  it  amounted  to 
an  entire  abolition  of  the  trial  by  jury  1  Certainly  not.  Yret  it  was  as  clearly  incon¬ 
sistent  with  the  common  law,  or  the  English  constitution,  to  disfranchise  those  whose 
freeholds  fell  below  any  arbitrary  standard  fixed  by  the  government,  as  it  would  have 
been  to  disfranchise  all  whose  freeholds  rose  above  that  standard. 


JURIES  OF  THE  PRESENT  DAY  ILLEGAL. 


151 


before  him.  But  the  principle  of  these  statutes  (fixing  the 
qualifications  of  jurors)  is,  that  nobody  is  to  sit  in  judgment 
upon  the  acts  or  legislation  of  the  king,  or  the  government, 
except  those  whom  the  government  itself  shall  select  for  that 
purpose.  A  more  complete  subversion  of  the  essential  prin¬ 
ciples  of  the  English  constitution  could  not  be  devised. 

The  juries  of  England  are  illegal  for  another  reason,  viz., 
that  the  statutes  cited  require  the  jurors  (except  in  London 
and  a  few  other  places)  to  be  freeholders.  All  the  other  free 
British  subjects  are  excluded  ;  whereas,  at  common  law,  all 
such  subjects  are  eligible  to  sit  in  juries,  whether  they  be  free¬ 
holders  or  not. 

It  is  true,  the  ancient  common  law  required  the  jurors  to  be 
freeholders;  but  the  term  freeholder  no  longer  expresses  the 
same  idea  that  it  did  in  the  ancient  common  law ;  because  no 
land  is  now  holden  in  England  on  the  same  principle,  or  by 
the  same  tenure,  as  that  on  which  all  the  land  was  held  in  the 
early  times  of  the  common  law. 

As  has  heretofore  been  mentioned,  in  the  early  times  of  the 
common  law  the  land  was  considered  the  property  of  the  state ; 
and  was  all  holden  by  the  tenants ,  so  called,  (that  is,  holders ,) 
on  the  condition  of  their  rendering  certain  military  and  civil 
services  to  the  state,  (or  to  the  king  as  the  representative  of 
the  state,)  under  the  name  of  rents.  Those  who  held  lands 
on  these  terms  were  called  free  tenants ,  that  is,  free  holders 
—  meaning  free  persons,  or  members  of  the  state,  holding 
lands  —  to  distinguish  them  from  villeins,  or  serfs,  who  were 
not  members  of  the  state,  but  held  their  lands  by  a  more  servile 
tenure,  and  also  to  distinguish  them  from  persons  of  foreign 
birth,  outlaws,  and  all  other  persons,  who  were  not  members 
of  the  state. 

Every  freeborn  adult  male  Englishman  (who  had  not  lost 
his  civil  rights  by  crime  or  otherwise)  was  entitled  to  land  of 
right ;  that  is,  by  virtue  of  his  civil  freedom,  or  membership 
of  the  body  politic.  Every  member  of  the  state  was  therefore 
a  freeholder ;  and  every  freeholder  was  a  member  of  the  state. 
And  the  members  of  the  state  were  therefore  called  freeholders. 
But  what  is  material  to  be  observed,  is,  that  a  man’s  right  to 


152 


TRIAL  BY  JURY. 


land  was  an  incident  to  his  civil  freedom ;  not  his  civil  freedom 
an  incident  to  his  right  to  land.  He  was  a  freeholder  because 
he  was  a  freeborn  member  of  the  state;  and  not  a  freeborn 
member  of  the  state  because  he  was  a  freeholder;  for  this  last 
would  be  an  absurdity. 

As  the  tenures  of  lands  changed,  the  term  freeholder  lost  its 
original  significance,  and  no  longer  described  a  man  who  held 
land  of  the  state  by  virtue  of  his  civil  freedom,  but  only  one 
who  held  it  in  fee-simple  —  that  is,  free  of  any  liability  to 
military  or  civil  services.  But  the  government,  in  fixing  the 
qualifications  of  jurors,  has  adhered  to  the  term  freeholder 
after  that  term  has  ceased  to  express  the  thing  originally 
designated  by  it. 

The  principle,  then,  of  the  common  law,  was,  that  every 
freeman,  or  freeborn  male  Englishman,  of  adult  age,  &c.,  was 
eligible  to  sit  in  juries,  by  virtue  of  his  civil  freedom,  or  his 
being  a  member  of  the  state,  or  body  politic.  But  the  principle 
of  the  present  English  statutes  is,  that  a  man  shall  have  a  right 
to  sit  in  juries  because  he  owns  lands  in  fee-simple.  At  the 
common  law  a  man  was  born  to  the  right  to  sit  in  juries.  By 
the  present  statutes  he  buys  that  right  when  he  buys  his  land. 
And  thus  this,  the  greatest  of  all  the  political  rights  of  an  Eng¬ 
lishman,  has  become  a  mere  article  of  merchandise ;  a  thing 
that  is  bought  and  sold  in  the  market  for  what  it  will  bring. 

Of  course,  there  can  be  no  legality  in  such  juries  as  these; 
but  only  in  juries  to  which  every  free  or  natural  born  adult 
male  Englishman  is  eligible. 

The  second  essential  principle  of  the  common  law,  controlling 
the  selection  of  jurors,  is,  that  when  the  selection  of  the  actual 
jurors  comes  to  be  made,  (from  the  whole  body  of  male  adults,) 
that  selection  shall  be  made  in  some  mode  that  excludes  the 
possibility  of  choice  on  the  part  of  the  government. 

Of  course,  this  principle  forbids  the  selection  to  be  made  by 
any  officer  of  the  government. 

There  seem  to  have  been  at  least  three  modes  of  selecting 
the  jurors,  at  the  common  law.  1.  By  lot,*  2.  Two  knights, 
or  other  freeholders,  were  appointed,  (probably  by  the  sheriff,) 

*  Lingard  says  :  “  These  compurgators  or  jurors  *  *  were  sometimes  *  *  drawn 
by  lot." —  1  Lingard' s  History  of  England,  p.  300. 


JURIES  OF  THE  PRESENT  DAY  ILLEGAL. 


153 


to  select  the  jurors.  3.  By  the  sheriff,  bailiff,  or  other  person, 
who  held  the  court,  or  rather  acted  as  its  ministerial  officer. 
Probably  the  latter  mode  may  have  been  the  most  common, 
although  there  may  be  some  doubt  on  this  point. 

At  the  common  law  the  sheriffs,  bailiffs,  and  other  officers 
were  chosen  by  the  people,  instead  of  being  appointed  by  the 
king.  (4  Blacks/one,  413.  Introduction  to  Gilbert's  History  of 
the  Common  Pleas ,  p.  2,  note ,  and  p.  4.)  This  has  been  shown 
in  a  former  chapter.*  At  common  law,  therefore,  jurors  selected 
by  these  officers  were  legally  selected,  so  far  as  the  principle 
now  under  discussion  is  concerned  ;  that  is,  they  were  not 
selected  by  any  officer  who  was  dependent  on  the  government. 

But  in  the  year  1315,  one  hundred  years  after  Magna  Carta, 
the  choice  of  sheriffs  was  taken  from  the  people,  and  it  was 
enacted : 

“  That  the  sheriffs  shall  henceforth  be  assigned  by  the  chan¬ 
cellor,  treasurer,  barons  of  the  exchequer,  and  by  the  justices. 
And  in  the  absence  of  the  chancellor,  by  the  treasurer,  barons 
and  justices.”  —  9  Edward  II.,  st.  2.  (1315.) 

These  officers,  who  appointed  the  sheriffs,  were  themselves 
appointed  by  the  king,  and  held  their  offices  during  his  pleas¬ 
ure.  Their  appointment  of  sheriffs  was,  therefore,  equivalent 
to  an  appointment  by  the  king  himself.  And  the  sheriffs,  thus 
appointed,  held  their  offices  only  during  the  pleasure  of  the 
king,  and  were  of  course  mere  tools  of  the  king;  and  their 
selection  of  jurors  was  really  a  selection  by  the  king  himself. 
In  this  manner  the  king  usurped  the  selection  of  the  jurors  who 
were  to  sit  in  judgment  upon  his  own  laws. 

Here,  then,  was  another  usurpation,  by  which  the  common 
law  trial  by  jury  was  destroyed,  so  far  as  related  to  the  county 
courts,  in  which  the  sheriffs  presided,  and  which  were  the 
most  important  courts  of  the  kingdom.  From  this  cause  alone, 
if  there  were  no  other,  there  has  not  been  a  legal  jury  in  a 
county  court  in  England,  for  more  than  five  hundred  years. 

In  nearly  or  quite  all  the  States  of  the  United  States  the 
juries  are  illegal,  for  one  or  the  other  of  the  same  reasons  that 
make  the  juries  in  England  illegal. 


Chapter  4,  p.  120,  note. 


154 


TRIAL  BY  JURY. 


In  order  that  the  juries  in  the  United  States  may  be  legal  — 
that  is,  in  accordance  with  the  principles  of  the  common  law 
—  it  is  necessary  that  every  adult  male  member  of  the  state 
should  have  his  name  in  the  jury  box,  or  be  eligible  as  a  juror. 
Yet  this  is  the  case  in  hardly  a  single  state. 

In  New  Jersey,  Maryland,  North  Carolina,  Tennessee,  and 
Mississippi,  the  jurors  are  required  to  b q  freeholders.  But  this 
requirement  is  illegal,  for  the  reason  that  the  term  freeholder, 
in  this  country,  has  no  meaning  analogous  to  the  meaning  it 
had  in  the  ancient  common  law. 

In  Arkansas,  Missouri,  Indiana,  and  Alabama,  jurors  are 
required  to  be  “freeholders  or  householders.”  Each  of  these 
requirements  is  illegal. 

In  Florida,  they  are  required  to  be  “  householders.” 

In  Connecticut,  Maine,  Ohio,  and  Georgia,  jurors  are  re¬ 
quired  to  have  the  qualifications  of  “electors.” 

In  Virginia,  they  are  required  to  have  a  property  qualifica¬ 
tion  of  one  hundred  dollars. 

In  Maine,  Massachusetts,  Vermont,  Connecticut,  New  York, 
Ohio,  Indiana,  Michigan,  and  Wisconsin,  certain  civil  author¬ 
ities  of  the  towns,  cities,  and  counties  are  authorized  to  select, 
once  in  one,  two,  or  three  years,  a  certain  number  of  the  peo¬ 
ple —  a  small  number  compared  with  the  whole  —  from  whom 
jurors  are  to  be  taken  when  wanted ;  thus  disfranchising  all 
except  the  few  thus  selected. 

In  Maine  and  Vermont,  the  inhabitants,  by  vote  in  town 
meeting,  have  a  veto  upon  the  jurors  selected  by  the  authorities 
of  the  town. 

In  Massachusetts,  the  inhabitants,  by  vote  in  town  meeting, 
can  strike  out  any  names  inserted  by  the  authorities,  and  in¬ 
sert  others;  thus  making  jurors  elective  by  the  people,  and,  of 
course,  representatives  only  of  a  majority  of  the  people. 

In  Illinois,  the  jurors  are  selected,  for  each  term  of  court,  by 
the  county  commissioners. 

In  North  Carolina,  “  the  courts  of  pleas  and  quarter  sessions 
*  *  shall  select  the  names  of  such  persons  only  as  are  free¬ 
holders,  and  as  are  well  qualified  to  act  as  jurors,  &c. ;  thus 
giving  the  courts  power  to  pack  the  juries.”  —  ( Revised  Stat¬ 
utes,  147.) 


JURIES  OF  THE  PRESENT  BAY  ILLEGAL. 


155 


In  Arkansas,  too,  “It  shall  be  the  duty  of  the  county  court 
of  each  county  *  '*  to  make  out  and  cause  to  be  delivered  to 
the  sheriff  a  list  of  not  less  than  sixteen,  nor  more  than  twenty- 
three  persons,  qualified  to  serve  as  grand  jurors;”  and  the 
sheriff  is  to  summon  such  persons  to  serve  as  grant?  jurors. 

In  Tennessee,  also,  the  jurors  are  to  be  selected  by  the 
county  courts. 

In  Georgia,  the  jurors  are  to  be  selected  by  “  the  justices  of 
the  inferior  courts  of  each  county,  together  with  the  sheriff  and 
clerk,  or  a  majority  of  them.” 

In  Alabama,  “the  sheriff,  judge  of  the  county  court,  and 
clerks  of  the  circuit  and  county  courts,”  or  “a  majority  of” 
them,  select  the  jurors. 

In  Virginia,  the  jurors  are  selected  by  the  sheriffs;  but  the 
sheriffs  are  appointed  by  the  governor  of  the  state,  and  that  is 
enough  to  make  the  juries  illegal.  Probably  the  same  objec¬ 
tion  lies  against  the  legality  of  the  juries  in  some  other  states. 

How  jurors  are  appointed,  and  what  are  their  qualifications, 
in  New  Hampshire,  Rhode  Island,  Pennsylvania,  Delaware, 
South  Carolina,  Kentucky,  Iowa,  Texas,  and  California,  I 
know  not.  There  is  little  doubt  that  there  is  some  valid  ob¬ 
jection  to  them,  of  the  kinds  already  suggested,  in  all  these 
states. 

In  regard  to  jurors  in  the  courts  of  the  United  States,  it  is 
enacted,  by  act  of  Congress  : 

“That  jurors  to  serve  in  the  courts  of  the  United  States,  in 
each  state  respectively,’ shall  have  the  like  qualifications,  and 
be  entitled  to  the  like  exemptions,  as  jurors  of  the  highest  court 
of  law  of  such  state  now  have  and  are  entitled  to,  and  shall 
hereafter,  from  time  to  time,  have  and  be  entitled  to,  and  shall 
be  designated  by  ballot,  lot,  or  otherwise,  according  to  the 
mode  of  forming  such  juries  now  practised  and  hereafter  to  be 
practised  therein,  in  so  far  as  such  mode  may  be  practicable 
by  the  courts  of  the  United  States,  or  the  officers  thereof;  and 
for  this  purpose,  the  said  courts  shall  have  power  to  make  all 
necessary  rules  and  regulations  for  conforming  the  designation 
and  empanelling  of  jurors,  in  substance,  to  the  laws  and  usages 
now  in  force  in  such  state  ;  and,  further,  shall  have  power,  by 
rule  or  order,  from  time  to  time,  to  conform  the  same  to  any 
change  in  these  respects  which  may  be  hereafter  adopted  by 
the  legislatures  of  the  respective  states  for  the  state  courts.”  — 
St.  1S4U,  ch.  47,  Statutes  at  Large,  vol.  5,  p.  394. 


156 


TRIAL  BY  JURY. 


Ill  this  corrupt  and  lawless  manner,  Congress,  instead  of 
taking  care  to  preserve  the  trial  by  jury,  so  far  as  they  might, 
by  providing  for  the  appointment  of  legal  juries  —  incom¬ 
parably  the  most  important  of  all  our  judicial  tribunals,  and 
the  only  ones  on  which  the  least  reliance  can  be  placed  for 
the  preservation  of  liberty  —  have  given  the  selection  of  them 
over  entirely  to  the  control  of  an  indefinite  number  of  state 
legislatures,  and  thus  authorized  each  state  legislature  to  adapt 
the  juries  of  the  United  States  to  the  maintenance  of  any  and 
every  system  of  tyranny  that  may  prevail  in  such  state. 

Congress  have  as  much  constitutional  right  to  give  over  all 
the  functions  of  the  United  States  government  into  the  hands 
of  the  state  legislatures,  to  be  exercised  within  each  state  in 
such  manner  as  the  legislature  of  such  state  shall  please  to 
exercise  them,  as  they  have  to  thus  give  up  to  these  legisla¬ 
tures  the  selection  of  juries  for  the  courts  of  the  United  States. 

There  has,  probably,  never  been  a  legal  jury,  nor  a  legal 
trial  by  jury,  in  a  single  court  of  the  United  States,  since  the 
adoption  of  the  constitution. 

These  facts  show  how  much  reliance  can  be  placed  in  writ¬ 
ten  constitutions,  to  control  the  action  of  the  government,  and 
preserve  the  liberties  of  the  people. 

If  the  real  trial  by  jury  had  been  preserved  in  the  courts 
of  the  United  States  —  that  is,  if  we  had  had  legal  juries,  and 
the  jurors  had  known  their  rights  —  it  is  hardly  probable  that 
one  tenth  of  the  past  legislation  of  Congress  would  ever  have 
been  enacted,  or,  at  least,  that,  if  enacted,  it  could  have  been 
enforced. 

Probably  the  best  mode  of  appointing  jurors  would  be  this : 
Let  the  names  of  all  the  adult  male  members  of  the  state,  in 
each  township,  be  kept  in  a  jury  box,  by  the  officers  of  the 
township;  and  when  a  court  is  to  be  held  for  a  county  or  other 
district,  let  the  officers  of  a  sufficient  number  of  townships  be 
required  (without  seeing  the  names)  to  draw  out  a  name  from 
their  boxes  respectively,  to  be  returned  to  the  court  as  a  juror. 
This  mode  of  appointment  would  guard  against  collusion  and 
selection;  and  juries  so  appointed  would  be  likely  to  be  a  fair 
epitome  of  “  the  country.” 


CHAPTER  Y II. 


ILLEGAL  JUDGES. 

It  is  a  principle  of  Magna  Carta,  and  therefore  of  the  trial 
by  jury,  (for  all  parts  of  Magna  Carta  must  be  construed 
together,)  that  no  judge  or  other  officer  appointed  by  the  king , 
shall  preside  in  jury  trials,  in  criminal  cases,  or  “pleas  of  the 
crown.” 

This  provision  is  contained  in  the  great  charters  of  both 
John  and  Henry,  and  is  second  in  importance  only  to  the  pro¬ 
vision  guaranteeing  the  trial  by  jury,  of  which  it  is  really  a 
part.  Consequently,  without  the  observance  of  this  prohibi¬ 
tion,  there  can  be  no  genuine  or  legal  —  that  is,  common  law 
—  trial  by  jury. 

At  the  common  law,  all  officers  who  held  jury  trials,  whether 
in  civil  or  criminal  cases,  were  chosen  by  the  people.* 


*  The  proofs  of  this  principle  of  the  common  law  have  already  been  given  on  page 
120,  note.  * 

There  is  much  confusion  and  contradiction  among  authors  as  to  the  manner  in  which 
sheriffs  and  other  officers  were  appointed;  some  maintaining  that  they  were  appointed 
by  the  king,  others  that  they  were  elected  by  the  people.  I  imagine  that  both  these 
opinions  are  correct,  and  that  several  of  the  king’s  officers  bore  the  same  official  names 
as  those  chosen  by  the  people ;  and  that  this  is  the  cause  of  the  confusion  that  has 
arisen  on  the  subject. 

It  seems  to  be  a  perfectly  well  established  fact  that,  at  common  law,  several  magis¬ 
trates,  bearing  the  names  of  aldermen,  sheriffs,  stewards,  coroners  and  bailiffs,  were 
chosen  by  the  people ;  and  yet  it  appears,  from  Magna  Carta  itself,  that  some  of  the 
king’s  officers  (of  whom  he  must  have  had  many)  were  also  called  “  sheriffs,  consta¬ 
bles,  coroners,  and  bailiffs.” 

But  Magna  Carta,  in  various  instances,  speaks  of  sheriffs  and  bailiffs  as  “  our  sheriffs 
and  bailiffs;”  thus  apparently  intending  to  recognize  the  distinction  between  officers  of 
the  king,  bearing  those  names,  and  other  officers,  bearing  the  same  official  names,  but 
chosen  by  the  people.  Thus  it  says  that  “  no  sheriff  or  bailiff  of  ours,  or  any  other 
(officer),  shall  take  horses  or  carts  of  any  freeman  for  carriage,  unless  with  the  consent 
of  the  freeman  himself.”  —  John’s  Charter,  ch.  3G. 

In  a  kingdom  subdivided  into  so  many  counties,  hundreds,  tithings,  manors,  cities 

14 


TKIAL.  BY  JOKY. 


irs 

But  previous  to  Magna  Carta,  the  kings  had  adopted  th& 
practice  of  sending  officers  of  their  own  appointment,  called 
justices,  into  the  counties,  to  hold  jury  trials  in  some  cases' 
and  Magna  Carta  authorizes  this  practice  to  be  continued  so 
far  as  it  relates  to  three  kinds  of  civil  actions,  to  wit :  u  novel 
disseisin,  mort  de  ancestor,  and  darrein  presentment;”*  but 
specially  forbids  its  being  extended  to  criminal  eases,,  or  pleas 
of  the  crown. 

This  prohibition  is  in  these  words: 

“Nulhis  vieecomes,  constabularius,  coronator T  vel  alii  balivi- 
nostri,  teneant  placita  coronas  nostrse.”  (No  sheriff,  eonsta- 
ble  coroner,  or  other  our  bailiffs ,  shall  hold  pleas  of  our 
crown.) — John’s  Charter ,  ch.  53.  Henry’ s  ditto,  ch.  17. 

Some  persons  seem  to  have  supposed  that  this  was  a  pro¬ 
hibition  merely  upon  officers  bearing  the  specific  names  of 
“ sheriffs ,  constables,  coroners  and  bailiffs,”  to  hold  criminal 
trials.  But  such  is  not  the  meaning.  If  it  were,  the  name 


and  boroughs,  each  having  a  judicial  or  police  organization  of  its  own,  it  is  evident  thab 
many  of  the  oflicers  must  have  been  chosen  by  the  people,  else  the  government  could 
not  have  maintained  its  popular  character.  On  the  other  hand,  it  is  evident  that  the- 
king,  t.he  executive  power  of  the  nation,  must  have  had  large  numbers  of  officers  of  bis- 
own  in  every  part  of  the  kingdom.  And  it  is  perfectly  natural  that  these  different 
sets  of  officers  should,  in  many  instances,  bear  the  same  official  names:  and,  conse¬ 
quently  that  the  king,  when  speaking  of  his  own  officers,  as  distinguished  from  those 
chosen  by  the  people,  should  call  them  ltFour  sheriffs, bailiffs,”'  &c.,as  he  does  in  Magna 
Carta. 

I  apprehend  that  inattention  to  these  consideration*  has  been  the  cause  of  all  the- 
confusion  of  ideas  that  has  arisen  on  this  subject, —  a  confusion  very  evident  in  the- 
following  paragraph  from  Dunham,  which  may  be  given  as  an  illustration  of  that  which 
is  exhibited  by  others  on  the  same  points. 

“■Subordinate  to  the  caldormen  were  the  gerefas ,  the  sheriffs,  or  reeves,  of  whom  there' 
were  several  in  every  shire,.or  county .  There  was  one  in  every  borough,  as  a  judge.  There 
was  one  at  every  gate,  who  witnessed  purchases  outside  the  walls;  and  there  was  one, 
higher  than  either,  —  the  high  sheriff,  —  who  was  probably  the  reeve  of  the  shire. 
This  last  appears  to  have  been  appointed  by  the  king.  Their  functions  were  to  execute 
the  decrees  of  the  king,  or  ealdormen,  to  arrest  prisoners,  to  require  bail  for  their 
appearance  at  the  sessions,  to  collect  fines  or  penalties  levied  by  the  court  of  the  shire, 
to  preserve  the  public  peace,  and  to  preside  in  a  subordinate  tribunal  of  their  own.”  — 
Dunham’s  Middle  Ages,  sec.  2,  B.  2,  ch.  1.  57  Lardner’s  Cab .  Cyc.,  p.  41. 

The  confusion  of  duties  attributed  to  these  officers  indicates  clearly  enough  that  differ¬ 
ent  officers,  bearing  the  same  official  names,  must  have  had  different  duties,  and  have- 
derived  their  authority  from  different  sources,  —  to  wit,  the  king,  and  the  people. 

*  Darrein  presentment  was  an  inquest  to  discover  who  presented  the  last  person  to  a 
church;  mort  de  ancestor,  whether  the  last  possessor  was  seized  of  land  in  demesne  of 
his  own  fee ;  and  novel  disseisin ,  whether  the  claimant  had  been  unjustly  disseized  of 
his  freehold. 


ILLEGAL  JUDGES. 


159 


■could  be  changed,  and  the  thing  retained;  and  thus  the  pro¬ 
hibition  be  evaded.  The  prohibition  applies  (as  will  pres¬ 
ently  be  seen)  to  all  officers  of  the  king  whatsoever ;  and  it 
sets  up  a  distinction  between  officers  of  the  king,  (“our  bail¬ 
iffs,”)  and  officers  chosen  by  the  people. 

The  prohibition  upon  the  king’s  justices  sitting  in  criminal 
trials,  is  included  in  the  words  “r el  alii  balivi  nostrif  (or 
other  ©ur  bailiffs.)  Tire  \vnrd  bailiff  was  anciently  a  sort  of 
general  name  iov  judicial  officers  and  persons  employed  in  and 
about  the  administration  of  justice.  In  modern  times  its  use, 
as  applied  to  the  higher  grades  of  judicial  officers,  has  been 
superseded  by  other  words;  and  it  therefore  now,  more  getter- 
ally,  if  not  universally,  signifies  an  executive  or  police  officer, 
a  servant  of  courts,  rather  than  one  whose  functions  are  purely' 
judicial. 

The  word  is  a  French  word,  brought  into  England  by  the 
.Normans. 

Coke  says,  u  Baylife  is  a  French  word,  and  signifies  an  offi¬ 
cer  concerned  in  the  administration  of  justice  of  a  certain  prov¬ 
ince;  and  because  a  sheriff  hath  an  office  concerning  the 
administration  of  justice  within  his  county,  or  bailiwick,  there¬ 
fore  be  called  his  county  baliva  sun,  (his  bailiwick.) 

“  I  have  heard  great  question  made  what  the  true  exposition 
■of  this  word  balivus  is.  In  the  statute  of  Magna  Carta,  cap. 
:28,  the  letter  of  that  statute  is,  nallus  balivi  is  de  ccctero  -ponal 
■aliquem  ad  legem  manifest  am  nec  ad  juramentum  simplici 
loquela  sua  sine  testibifs  jidelibitsad  hocinduclis (No  bailiff 
from  henceforth  shall  put  any  one  to  his  open  law,  nor  to  an 
oath  (of  self-exculpation)  upon  his  own  simple  accusation,  or 
complaint,  without  faithful  witnesses  brought  in  for  the  same.) 
■“And  some  have  said  that  balivus  in  this  statute  siguifieth  any 
judge;  for  the  law  must  be  waged  and  made  before  the  judge. 
And  this  statute  (say  they)  extends  to  the  courts  of  common 
pleas ,  king's  bench. ,  etc.,  for  they  must  bring  with  them  fideles 
lestes ,  (faithful  witnesses.)  etc.,  and  so  hath  been  the  usage  to 
this  dap?'  —  1  Coke's  lust.,  1G8  b. 

Coke  makes  various  references,  in  his  margin  to  Bracton, 
Fleta.  and  other  authorities,  which  1  have  not  examined,  but 
which,  I  presume,  support  the  opinion  expressed  in  this  quota¬ 
tion. 

Coke  also,  in  another  place,  under  the  head  of  the  chapter 


160 


TltlAL  BY  JURY. 


just  cited  from  Magna  Carta,  that  “  no  bailiff  shall  put  any 
man  to  his  open  law"  &c.,  gives  the  following  commentary 
upon  it,  from  the  Mirror  of  Justices,  from  which  it  appears 
that  in  the  time  of  Edward  I.,  (1272  to  1307,)  this  word  balivus 
was  understood  to  include  all  judicial ,  as  well  as  all  other, 
officers  of  the  king. 

.  The  Mirror  says:  “The  point  which  forbiddeth  that  n© 
bailiff  put  a  freeman  to  his  oath  without  suit,  is  to  be  under¬ 
stood  in  this  manner, —  that  no  justice,  no  minister  of  the  king , 
nor  other  steward,  nor  bailiff,  have  power  to  make  a  freeman 
make  oath,  (of  self-exculpation,)  without  the  king' s  command  * 
nor  receive  any  plaint,  without  witnesses  present  who  testify 
the  plaint  to  be  true.”  —  Mirror  of  Justices,  ch.  5,  sec.  2,  p. 
257. 

Coke  quotes  this  commentary,  (in  the  original  French,)  and 
then  endorses  it  in  these  words  i 

“By  this  it  appeareth,  that  under  this  word  balivus ,  in  this 
act,  is  comprehended  every  justice,  minister  of  the  king,  stew¬ 
ard,  and  bailiff.”  —  2  Inst.,  44. 

Coke  also,  in  his  commentary  upon  this  very  chapter  of 
Magna  Carta,  that  provides  that  “  no  sheriff ,  constable,  coroner, 
or  other  our  bailiffs,  shall  hold  pleas  of  our  crown,"  expresses 
the  opinion  that  it  11  is  a  general  lav:,"  (that  is,  applicable  to 
all  officers  of  the  king,)  “  by  reason  of  the  words  vel  alii  balivi 
nostri,  (or  other  our  bailiffs,)  under  •which  words  are  compre¬ 
hended  all  judges  or  justices  of  any  courts  of  justice."  And 
he  cites  a  decision  in  the  king’s  bench,  in  the  17th  year  of  Ed¬ 
ward  I.,  (1289,)  as  authority;  which  decision  he  calls  “a 
notable  and  leading  judgment.”  —  2  Inst. ,  30 — 1. 

And  yet  Coke,  in  flat  contradiction  of  this  decision,  which 
he  quotes  with  such  emphasis  and  approbation,  and  in  flat 
contradiction  also  of  the  definition  he  repeatedly  gives  of  the 
word  balivus,  showing  that  it  embraced  all  ministers  of  the 
king  whatsoever ,  whether  high  or  low,  judicial  or  executive, 
fabricates  an  entirely  gratuitous  interpretation  of  this  chapter 


*  lie  has  no  power  to  do  it,  either  with,  or  without,  the  king’s  command.  The  prohibition 
is  absolute,  containing  no  such  qualification  as  is  here  interpolated,  viz.,  “  without  the 
king's  command.”  If  it  could  be  done  with  the  king’s  command,  the  king  would  b<a 
invested  with  arbitrary  power  in  the  matter. 


^LL'BGAL  JUDGES. 


161 


■«f  Magna  Carta,  and  pretends  that  after  all  it  only  required 
that  felonies  should  be  tried  before  the  king’s  justices ,  on 
■account  of  (heir  superior  learning;  and  that  it  permitted  all 
lesser  offences  to  be  tried  before  inferior  officers,  (meaning  of 
•course  the  king's  inferior  officers.)  — 2  Inst.,  30. 

And  thus  this  chapter  of  Magna  Carta,  which,  according  to 
his  own  definition  of  the  word  balimts ,  applies  to  all  officers  o( 
the  king;  and  which,  according  to  the  common  and  true  defi¬ 
nition  of  the  term  “pleas  of  the  crown,”  applies  to  all  criminal 
cases  without  distinction,  and  which,  therefore,  forbids  any 
officer  or  minister  of  the  king  to  preside  in  a  jury  trial  in  any 
‘criminal  case  whatsoever,  he  coolly  and  gratuitously  interprets 
•into  a  mere  senseless  provision  for  simply  restricting  the  dis¬ 
cretion  of  the  king  in  giving  names  to  his  own  officers  who 
should  preside  at  the  trials  of  particular  offences;  as  if  the 
king,  who  made  and  unmade  all  his  officers  by  a  word,  could 
not  defeat  the  whole  object  of  the  prohibition,  by  appointing 
such  individuals  as  he  pleased,  to  try  such  causes  as  he  pleased, 
and  calling  them  by  such  names  as  he  pleased,  if  he  tvere  hut. 
'permitted  to  appoint  and  name  suck  officers  at.  all;  and  as  if  it 
were  of  the  least  importance  what  name  an  officer  bore,  whom 
the  king  might  appoint  to  a  particular  duty.* 


*  The  absurdity  of  this  doctrine  of  Coke  is  made  more  apparent  by  the  fact  that,  at 
&hat  time,  the  “justices  ”  and  other  persons  appointed  by  the  king  to  hold  courts  were 
not  only  dependent  upon  the  king  for  their  offices,  and  removable  at  his  pleasure,  but 
•that  the  usual  custom  was ,  not  to  appoirU  them  with  any  view -to  permanency,  but  only  to 
give  them  special  commissions  for  trying  a  single  cause ,  or  for  holding  a  single  term  of  a 
courts  or  for  making  a  single  circuit;  which,  being  done ;  their  commissions  expired.  The 
•king,  therefore,  could,  and  undoubtedly  did,  appoint  any  individual  he  pleased,  to  try  any 
■cause  he  pleased,  with  a  special  view  to  the  verdicts  he  desired  to  obtain  in  the  particular  cases. 

This  custom  of  commissioning  particular  persons  to  hold  jury  trials,  in  criminal  cases, 
-(and  probably  also  in  civil  ones,)  was  of  course  a  usurpation  upon  the  common  law, 
but  had  been  practised  more  or  less  from  the  time  of  William  the  Conqueror,  PaJgrave 
says : 

“  The  frequent  absence  of  William  from  his  insular  dominions  occasioned  another 
mode  of  administration,  which  ultimately  produced  still  greater  changes  in  the  law.  It  was 
•the  practice  of  appointing  justiciars  to  represent  the  king’s  person,  to  hold  his  court,  to 
•decide  his  pleas,  to  dispense  justice  on  his  behalf,  to  command  the  military  levies,  and 
to  act  as  conservators  of  the  peace  in  the  king’s  name.*  ,  The  justices  who  were 

*  In  this  extract,  Palgrave  seems  to  assume  that  the  king  himself  had  a  right  to  sit  as  judge,  in 
jury  trials,  in  the  county  courts,  in  both  civil  and  criminal  cases.  I  apprehend  he  had  no  such 
power  at  th*>  common  law ,  but  only  to  sit  in  the  trial  of  appeals,  and  in  the  trial  of  peers,  and  of 
■civil  suits  in  which  peers  were  parties,  and  possibly  in  the  courts  of  aucieot  demesne. 

14* 


162 


TRIAL  BY  JURY. 


Coke  evidently  gives  this  interpretation  solely  because,  as  he 
was  giving  a  general  commentary  on  Magna  Carta,  lie  was 
bound  to  give  some  interpretation  or  other  to  every  chapter  of 
n  :  and  for  this  chapter  he  could  invent,  or  fabricate,  (for  it  is 


assigned  in  tlio  name  of  the  sovereign,  and  whose  powers  were  revocable  at  his  pleas¬ 
ure.  derived  their  authority  merely  from  their  grant.  .  .  Some  of  those  judges  were 

•usually  deputed  for  the  purpose  of  relieving  the  king  from  the  burden  of  his  judicial 
fun  -lions.  .  .  The  number  as  well  as  the  variety  of  names  of  the  justices  appear¬ 

ing  in  the  early  chirographs  of  ‘  Concords,’  leave  reason  for  doubting  whether,  anterior 
to  the  reign  of  Henry  III.,  (1210  to  1272,)  a  court ,  whose  members  were  changing  at 
•  l  n  st  nary  session,  can  be  said  to  have  been  permanently  constituted.  It  seems  more  prob- 
< 1  ie  that  t/ic  individuals  who  composed  the  tribunal  were  selected  as  suited  the  pleasure  of  the 
s'-t  eregn,  and  the  convenience  of  the  clerks  and  barons;  and  the  history  of  our  legal 
administration  will  be  much  simplified,  if  we  consider  all  those  courts  which  were  after¬ 
wards  denominated  the  Exchequer,  the  King’s  lieuch,  the  Common  Pleas,  and  the 
Chancery,  as  being  originally  committees,  selected  by  the  king  when  occasion  required,  out 
i.l  a  large  body,  for  the  despatch  of  peculiar  branches  of  business,  and  which  committees, 
by  degrees,  assumed  an  independent  and  permanent  existence.  .  .  Justices  itinerant, 

wuo,  .despatched  throughout  the  land,  decided  the  ‘  Pleas  of  the  Crown,’  may  be 
obscurely  .traced  in  the  reign  of  the  Conqueror;  not,  perhaps,  appointed  with  much  regu¬ 
larity,  but  despatched  upon  peculiar  occasions  and  emergencies .” —  1  Palgrave’s  Rise  and 
Progress,  &.C-,  p.  289  to  293. 

The  following  statute,  passed  in  1354,  (139  years  after  Magna  Carta,)  shows  that 
eveu  after  this  usurpation  of  appointing  “justices  ”  of  his  own,  to  try  criminal  eases, 
had  probably  become  somewhat  established  in  practice,  in  defiance  of  Magna  Carta, 
the  king  was  in  the  habit  of  granting  special  commissions  to  still  other  persons,  (espec¬ 
ially  to  sheriffs,  —  his  sheriffs,  no  doubt,)  to  try  particular  cases  : 

“Because  that  the  people  of  the  realm  have  suffered  many  evils  and  mischiefs,  for 
that  sheriffs  of  divers  counties,  by  virtue  of  commissions  and  general  writs  granted  to 
them  at  their  own  suit,  for  their  singular  profit  to  gain  of  the  people,  have  made  and 
taken  divers  inquests  to  cause  to  indict  the  people  at  their  will,  and  have  taken  fine  and 
ransom  of  them  to  their  own  use,  and  have  delivered  them;  whereas  such  persons 
indicted  were  not  brought  before  the  king’s  justices  to  have  their  deliverance,  it  is 
accorded  and  established,  for  to  eschew  all  such  evils  and  mischiefs,  that  such  commis¬ 
sions  and  writs  before  this  time  made  shall  be  utterly  repealed,  and  that  from  hence¬ 
forth  no  such  commissions  shall  be  granted.”  —  St.  28  Edward  III.,  ch.  9,  (1354.) 

IIow  silly  to  suppose  that  the  illegality  of  these  commissions  to  try  criminal  cases, 
could  have  been  avoided  by  simply  granting  them  to  persons  under  the  title  of  “  jus¬ 
tices ,”  instead  of  granting  them  to  “sheriffs.”  The  statute  was  evidently  a  cheat,  or  at 
least  designed  as  such,  inasmuch  as  it  virtually  asserts  the  right  of  the  king  to  appoint 
his  tools,  under  the  name  of  “justices,”  to  try  criminal  cases,  while  it  disavows  his 
right  to  appoint  them  under  the  name  of  “  sheriffs.” 

Millar  says  :  “  When  the  king’s  bench  came  to  have  its  usual  residence  at  Westmin¬ 
ster,  the  sovereign  was  induced  to  grant  special  commissions,  for  trying  particular  crimes, 
in  such  parts  of  the  country  as  were  found  most  convenient;  and  this  practice  was 
gradually  modelled  into  a  regular  appointment  of  certain  commissioners,  empowered,  at 
stated  seasons,  to  perform  circuits  over  the  kingdom,  and  to  hold  courts  in  particular 
towns,  for  the  trial  of  all  sorts  of  crimes.  These  judges  of  the  circuit,  however,  never 
obtained  an  ordinary  jurisdiction,  but  continued,  on  every  occasion,  to  derive  their  authority 
from  two  special  commissions  :  that  of  oyer  and  terminer,  by  which  they  were  appointed  to 
hear  and  determine  all  treasons,  felonies  and  misdemeanors,  within  certain  districts; 
and  that  of  gad  delivery,  by  which  they  were  directed  to  try  every  prisoner  confined  in 
the  gaols  of  the  several  towns  falling  under  their  inspection.”  —  Millar’s  Hist.  View  of 
Eng.  Gov.,  vol.  2,  ch.  7,  p.  282. 

The  following  extract  from  Gilbert  shows  to  what  lengths  of  usurpation  the  kings 


ILLEGAL  JUDGES. 


163 


a  sheer  fabrication,)  no  interpretation  better  suited  to  his  pur¬ 
pose  than  this.  It  seems  never  to  have  entered  his  mind,  (or 
if  it  did,  he  intended  that  it  should  never  enter  the  mind  of 
anybody  else,)  that  the  object  of  the  chapter  could  be  to  deprive 
the  king  of  the  power  of  putting  his  creatures  into  criminal 
courts,  to  pack,  cheat,  and  browbeat  juries,  and  thus  maintain 
his  authority  by  procuring  the  conviction  of  those  who  should 
transgress  his  laws,  or  incur  his  displeasure. 

This  example  of  Coke  tends  to  show  how  utterly  blind,  or 
how  utterly  corrupt.  English  judges,  (dependent  upon  the 
crown  and  the  legislature),  have  been  in  regard  to  everything 
in  Magna  Carta,  that  went  to  secure  the  liberties  of  the  people, 
or  limit  the  power  of  the  government. 

Coke’s  interpretation  of  this  chapter  of  Magna  Carta  is  of  a 
piece  with  his  absurd  and  gratuitous  interpretation  of  the 
words  “  nec  super  cum  ibbnus,  nec  super  cum  mittemus ,” 
which  was  pointed  out  in  a  former  article,  and  by  which  he 
attempted  to  give  a  judicial  power  to  the  king  and  his  judges, 
where  Magna  Carta  had  given  it  only  to  a  jury.  It  is  also  of 
a  piece  with  his  pretence  that  there  was  a  difference  between 


would  sometimes  go,  in  tlieir  attempts  to  get  the  judicial  power  out  of  the  hands  of  the 
people,  and  entrust  it  to  instruments  of  their  own  choosing  : 

“From  the  time  of  the  Saxons ,”  (that  is,  from  the  commencement  of  the  reign  of 
William  the  Conqueror,)  “till  the  reign  of  Edward  the  first,  (1272  to  1307,)  the  sev¬ 
eral  county  courts  and  sheriffs  courts  did  decline  in  their  interest  and  authority.  Tho 
methods  by  which  they  were  broken  were  two-fold.  First,  by  granting  commissions  to 
the.  sheriffs  by  writ  of  justicies,  whereby  the  sheriff  had  a  particular  jurisdiction  granted  him 
to  be  judge  of  a  particular  cause,  independent  of  the  suitors  of  the  county  court,”  (that  is, 
without  a  jury;)  “and  these  commissions  were  after  the  Norman  form,  by  which  ( according 
to  which)  all  power  of  judicature  was  immediately  derived  from  the  king.”  —  Gilbert  on  the 
Court  of  Chancery,  p.  1. 

The  several  authorities  now  given  show  that  it  was  the  custom  of  tho  Norman  kings, 
not  only  to  appoint  persons  to  sit  as  judges  in  jury  trials,  in  criminal  cases,  but  that 
they  also  commissioned  individuals  to  sit  in  singular  and  particular  cases,  as  occasion 
required  ;  and  that  they  therefore  readily  could,  and  naturally  would,  and  therefore 
undoubtedly  did,  commission  individuals  with  a  special  view  to  their  adaptation  or 
capacity  to  procure  such  judgments  as  the  kings  desired. 

The  extract  from  Gilbert  suggests  also  the  usurpation  of  the  Norman  kings,  in  their 
assumption  that  they,  (and  not  the  people,  as  by  the  common  law,)  were  the  fountains  of 
justice.  It  was  only  by  virtue  of  this  illegal  assumption  that  they  could  claim  to 
appoint  their  tools  to  hold  courts. 

All  these  things  show  how  perfectly  lawless  and  arbitrary  the  kings  were,  both 
before  and  after  Magna  Carta,  and  how  necessary  to  liberty  was  the  principle  of  Magna 
Carta  and  the  common  law,  that  no  person  appointed  by  the  king  should  hold  jury 
trials  in  criminal  cases. 


104 


TRIAL  BY  JURY. 


fine  and  amercement ,  and  that  fines  might  be  imposed  by  the 
king,  and  that  juries  were  required  only  for  fixing  amerce¬ 
ments. 

These  are  some  of  the  innumerable  frauds  by  which  the 
English  people  have  been  cheated  out  of  the  trial  by  jury. 

Ex  uno  disce  omnes .  From  one  judge  learn  the  characters 
of  all.* 

I  give  in  the  note  additional  and  abundant  authorities  for 


*  The  opinions  and  decisions  of  judges  and  courts  are  undeserving  of  the  least  reliance, 
(beyond  the  intrinsic  merit  of  the  arguments  offered  to  sustain  them,)  and  are  unwor¬ 
thy  even  to  be  quoted  as  evidence  of  the  law,  when  those  opinions  or  decisions  are  favor¬ 
able  to  the  power  of  the  government,  or  unfavorable  to  the  liberties  of  the  people.  The  only 
reasons  that  their  opinions,  when  in  favor  of  liberty,  are  entitled  to  any  confidence,  are, 
first,  that  all  presumptions  of  law  are  in  favor  of  liberty;  and,  second,  that  the  admis¬ 
sions  of  all  men,  the  innocent  and  the  criminal  alike,  when  made  against  their  own  inter¬ 
ests,  are  entitled  to  be  received  as  true,  because  it  is  contrary  to  human  nature  for  a 
uian  to  confess  anything  but  truth  against  himself. 

More  solemn  farces,  or  more  gross  impostures,  were  never  practised  upon  mankind, 
than  are  all,  or  very  nearly  all,  those  oracular  responses  by  which  courts  assume  to  deter¬ 
mine  that  certain  statutes,  in  restraint  of  individual  liberty,  are  within  the  constitu¬ 
tional  power  of  the  government,  and  are  therefore  valid  and  binding  upon  the  people. 

The  reason  why  these  courts  are  so  intensely  servile  and  corrupt,  is,  that  they  are 
not  only  parts  of.  but  the  veriest  creatures  of,  the  very  governments  whose  oppressions 
they  are  thus  seeking  to  uphold.  They  receive  their  offices  and  salaries  from,  and  are 
impeachable  and  removable  by,  the  very  governments  upon  whose  acts  they  affect  to 
sit  in  judgment.  Of  course,  no  one  with  his  eyes  open  ever  places  himself  in  a  position 
so  incompatible  with  the  liberty  of  declaring  his  honest  opinion,  unless  he  do  it  with  the 
intention  of  becoming  a  mere  instrument  in  the  hands  of  the  government  for  the 
execution  of  all  its  oppressions. 

As  proof  of  this,  look  at  the  judicial  history  of  England  for  the  last  five  hundred 
years,  and  of  America  from  its  settlement.  In  all  that  time  (so  far  as  I  know,  or  pre¬ 
sume)  no  bench  of  judges,  (probably  not  even  any  single  judge,)  dependent  upon  the 
legislature  that  passed  the  statute,  has  ever  declared  a  single  penal  statute  invalid,  on 
account  of  its  being  in  conflict  either  with  the  common  law,  which  the  judges  in  Eng¬ 
land  have  been  sworn  to  preserve,  or  with  the  written  constitutions,  (recognizing  men’s 
natural  rights,)  which  the  American  judges  were  under  oath  to  maintain.  Every 
oppression,  every  atrocity  even,  that  has  ever  been  enacted  in  either  country,  by  the 
legislative  power,  in  the  shape  of  a  criminal  law,  (or,  indeed,  in  almost  any  other  shape,) 
lias  been  as  sure  of  a  sanction  from  the  judiciary  that  was  dependent  upon,  and  impeach¬ 
able  by,  the  legislature  that  enacted  the  law,  as  if  there  were  a  physical  necessity  that 
the  legislative  enactment  and  the  judicial  sanction  should  go  together.  Practically 
speaking,  the  sum  of  their  decisions,  all  and  singular,  has  been,  that  there  are  no  limits 
to  the  power  of  the  government,  and  that  the  people  have  no  rights  except  what  the 
government  pleases  to  allow  to  them. 

It  is  extreme  folly  for  a  people  to  allow  such  dependent,  servile,  and  perjured  crear 
tures  to  sit  either  in  civil  or  criminal  trials;  but  to  allow  them  to  sit  in  criminal  trials, 
and  judge  of  the  people’s  liberties,  is  not  merely  fatuity,  —  it  is  suicide. 


ILLEGAL  JUDGES. 


165 


the  meaning  ascribed  to  the  word  bailiff.  The  importance  of 
the  principle  involved  will  be  a  sufficient  excuse  for  such  an 
accumulation  of  authorities  as  would  otherwise  be  tedious  and 
perhaps  unnecessary.* 

The  foregoing  interpretation  of  the  chapter  of  Magna  Carta 
now  under  discussion,  is  corroborated  by  another  chapter  of 


*  Coke,  speaking  of  the  word  bailiffs,  as  used  in  the  statute  of  1  Westminster,  ch.  35, 
(1275,)  says  : 

“Here  bailiffs  are  taken  for  the  judges  of  the  court,  as  manifestly  appeareth  hereby.” 
—  2  Inst.,  229. 

Coke  also  says,  “It  is  a  maxim  in  law,  aliquis  non  debet  esse  judex  in  propria  causa,  (no 
one  ought  to  be  judge  in  his  own  cause;)  and  therefore  a  fine  levied  before  the  bay- 
lifes  of  Salop  was  reversed,  because  one  of  the  baylifes  was  party  to  the  fine,  quia  non 
potest  esse  judex  et  pars,”  (because  one  cannot  he  judge  and  party.)  —  1  Inst.,  Ill  a. 

In  the  statute  of  Gloucester,  eh.  II  and  12,  (1278,)  “the  mayor  and  bailiffs  of  Lon¬ 
don  (undoubtedly  ehosen  by  the  people,  or  at  any  rate  not  appointed  by  the  king)  are 
manifestly  spoken  of  as  judges,  or  magistrates,  holding  jury  trials,  as  follows  : 

Ch.  II.  “  It  is  provided,  also,  that  if  any  man  lease  his  tenement  in  the  city  of  Lon¬ 
don,  for  a  term  of  years,  and  he  to  whom  the  freehold  belongeth  eauseth  himself  to 
be  impleaded  by  collusion,  and  maketh  default  after  default,  or  Cometh  into  court  and 
giveth  it  up,  for  to  make  the  termor  (lessee)  lose  his  term,  (lease,)  and  the  demandant 
hath  his  suit,  so  that  the  termor  may  recover  by  writ  of  covenant;  the  mayor  and  bailiffs 
may  inquire  by  a  good  inquest,  {jury,)  in  the  presence  of  the  termor  and  the  demandant, 
whether  the  demandant  moved  his  plea  upon  good  right  that  he  had,  or  by  collusion, 
or  fraud,  to  make  the  termor  lose  his  term;  and  if  it  be  found  by  the  inquest  (jury, 
that  the  demandant  moved  his  plea  upon  good  right  that  he  had,  the  judgment  shall 
be  given  forthwith;  and  if  it  be  found  by  the  inquest  (jury)  that  lie  impleaded  him 
(self)  by  fraud,  to  put  the  termor  from  his  term,  then  shall  the  termor  enjoy  his  term, 
and  the  execution  of  judgment  for  the  demandant  shall  be  suspended  until  the  term  be 
expired.” — (j  Eduiard  I.,  ch.  11,  (1278.) 

Coke,  in  his  commentary  on  this  chapter,  calls  this  court  of  “  the  mayor  and  bailiffs  ” 
of  Loudon,  “  the  court  of  the  hustings,  the  greatest  and  highest  court  in  London  ;”  and  adds, 
“  other  cities  have  the  like  court,  and  so  called,  as  York,  Lincoln,  Winchester,  &o. 
Here  the  city  of  London  is  named;  but  it  appeareth  by  that  which  hath  been  said  out 
of  Fleta,  that  this  act  extends  to  such  cities  and  boroughs  privileged,  —  that  is,  such  as 
have  such  privilege  to  hold  plea  as  London  hath.”  —  2  Inst.,  322. 

The  12th  chapter  of  the  same  statute  is  in  the  following  words,  which  plainly  recog¬ 
nize  the  fact  that  “  the  mayor  and  bailiffs  of  London”  are  judicial  ollicers  holding  courts 
in  London. 

“  It  is  provided,  also,  that  if  a  man,  impleaded  for  a  tenement  in  the  same  city, 
(London,)  doth  vouch  a  foreigner  to  warranty,  that  he  shall  come  into  the  chancery, 
and  have  a  writ  to  summon  his  warrantor  at  a  certain  day  before  the  justices  of  the 
bench,  and  another  writ  to  the  mayor  and  bailiffs  of  London,  that  they  shall  surcease  (sus¬ 
pend  proceedings)  in  the  matter  that  is  before  them  by  writ,  until  the  plea  of  the  warrantee 
be  determined  before  the  justices  of  the  bench;  and  when  the  plea  at  the  bench  shall 
be  determined,  then  shall  he  that  is  vouched  be  commanded  to  go  into  the  city,”  (that 
is,  before  “the  mayor  and  bailiffs'  ”  court,)  “to  answer  unto  the  chief  plea;  and  a 
writ  shall  be  awarded  at  the  suit  of  the  demandant  by  the  justices  unto  the  mayor  and 
bailiffs,  that  they  shall  proceed  in  the  plea,"  Ac.  —  6  Edward  I.,  ch.  12,  (1278.) 

Coke,  in  his  commentary  on  this  chapter,  also  speaks  repeatedly  of  “  the  mayor  and 
bailiffs  ”  as  judges  holding  courts;  and  also  speaks  of  this  chapter  as  applicable  not  only 
to  “  the  citic  of  London,  specially  named  for  the  causo  aforesaid,  but  extended  by  equity 
to  all  other  privileged  places,”  (that  is,  privileged  to  have  a  court  of  “mayor  and  bail- 


166 


TRIAL  BY  JURY. 


Magna  Carta,  which  specially  provides  that  the  king’s  justices 
shall  “go  through  every  county”  to  “take  the  assizes”  (hold 
jury  trials)  in  three  kinds  of  civil  actions,  to  wit,  “novel  dis¬ 
seisin,  mort  de  ancestor,  and  darrein  presentment;”  but  makes 
no  mention  whatever  of  their  holding  jury  trials  in  criminal 
cases,  —  an  omission  wholly  unlikely  to  be  made,  if  it  were 


iffs,”)  “  where  foreign  voucher  is  made,  as  to  Chester,  Durham,  Salop,”  &c.  —  2  Inst., 

325-7. 

Bailie. — In  Scotch  law,  a  municipal  magistrate,  corresponding  with  the  English 
alderman .* — Hum  IPs  Law  Dictionary. 

Bailiffe. —  Baillif.  Fr.  A  bailiff:  a  ministerial  officer  with  duties  similar  to 

those  of  a  sheriff.  .  .  The  judge  of  a  court.  A  municipal  magistrate,  &c _ Bur- 

rill's  Law  Diet. 

Bailiff.  .  .  The  word  bailiff  is  of  Norman  origin,  and  was  applied  in  England, 
at  aD  early  period,  (after  the  example,  it  is  said,  of  the  French,)  to  the  chief  magis¬ 
trates  of  counties,  or  shires,  such  as  the  altjerman,  the  reeve,  or  sheriff,  and  also  of  infe¬ 
rior  jurisdictions,  such  as  hundreds  and  wapentakes.  —  Spelman,  voc.  Balivus;  1  El. 
Com.,  344.  Set  Bailli,  Ballivus.  The  Latin  ballivus  occurs,  indeed,  in  the  laws  of 
Edward  the  Confessor,  but  Spelman  thinks  it  was  introduced  by  a  later  hand.  Balliva 
(bailiwick)  was  the  word  formed  from  ballivus,  to  denote  the  extent  of  territory  com¬ 
prised  within  a  bailiff’s  jurisdiction;  and  bailiwick  is  still  retained  in  writs  and  other 
proceedings,  as  the  name  of  a  sheriff’s  county.  —  1  Bl.  Com.,  344.  See  Balliva.  The 
office  of  bailiff  was  at  first  strictly,  though  not  exclusively,  a  judicial  one.  In  France,  the 
word  had  the  sense  of  what  Spelman  calls  justitia  tutclaris.  Ballivus  occurs  frequently 
in  the  Regiam  Majestatem,  in  the  sense  of  a,  judge.  —  Spelman.  In  its  sense  of  a  dep¬ 
uty,  it  was  formerly  applied,  in  England,  to  those  officers  who,  by  virtue  of  a  deputa¬ 
tion,  either  from  the  sheriff  or  the  lords  of  private  jurisdictions,  exercised  within  the 
hundred,  or  whatever  might  be  the  limits  of  their  bailiwick,  certain  judicial  and  minis¬ 
terial  functions.  With  the  disuse  of  private  and  local  jurisdictions,  the  meaning  of  the 
term  became  commonly  restricted  to  such  persons  as  were  deputed  by  the  sheriff  to 
assist  him  in  the  merely  ministerial  portion  of  his  duty;  such  as  the  summoning  of 
juries,  and  the  execution  of  writs.  —  Brande.  .  .  The  word  bailiff  is  also  applied  in 

England  to  the  chief  magistrates  of  certain  towns  and  jurisdictions,  to  the  keepers  of 
castles,  forests  and  other  places,  and  to  the  stewards  or  agents  of  lords  of  manors.  — 
Burrill's  Law  Diet. 

“  Bailiff,  (from  the  Lat.  ballivus;  Fr.  baillif,  i.  e.,  Prafectus provincial,)  signifies  an 
officer  appointed  for  the  administration  of  justice  within  a  certain  district.  The  office, 
as  well  as  the  name,  appears  to  have  been  derived  from  the  French,”  &c.  —  Brewster's 
Encyclopedia. 

Millar  says,  “  The  French  monarchs,  about  this  period,  were  not  content  with  the 
power  of  receiving  appeals  from  the  several  courts  of  their  barons.  An  expedient  was 
devised  of  sending  royal  bailiffs  into  different  parts  -of  the  kingdom,  with  a  commission 
to  take  cognizance  of  all  those  causes  in  which  the  sovereign  was  interested,  and  in 
reality  for  the  purpose  of  abridging  and  limiting  the  subordinate  jurisdiction  of  the 

*  Alderman  was  a  title  anciently  given  to  various  judicial  officers,  as  the  Alderman  of  all  Eng¬ 
land,  Alderman  of  the  King,  Alderman  of  the  County,  Alderman  of  the  City  or  Borough,  alder¬ 
man  of  the  Hundred  or  Wapentake.  These  were  all  judicial  officers.  See  Law  Dictionaries. 


ILLEGAL  JUDGES. 


167 


designed  they  should  attend  the  trial  of  such  causes.  Besides^ 
the  chapter  here  spoken  of  (in  John’s  charter)  does  not  allow 
these  justices  to  sit  alone  in  jury  trials,  even  in  civil  actions; 
but  provides  that  four  knights,  chosen  by  the  county,  shall  sit 


neighboring  feudal  superiors.  By  an  edict  of  Phillip  Augustus,  in  the  year  1 1 90,  those 
bailiffs  were  appointed  in  all  the  principal  towns  of  the  kingdom.”  —  Millar’s  Hist. 
View  of  the  Eng.  Gov.,  vol.  ii.,  ch.  3,  p.  126. 

“Bailifi ’-office.  —  Magistrates  who  formerly  administered  justice  in  the  parliaments 
or  courts  of  France,  answering  to  the  English  sheriffs,  as  mentioned  by  Bracton.”  — 
Bonder’s  Law  Diet. 

“  There  be  several  officers  called  bailiffs,  whose  offices  and  employments  seem  quite 
different  from  each  other.  .  .  The  chief  magistrate,  in  divers  ancient  corporations, 

are  called  bailiffs,  as  in  Ipswich,  Yarmouth,  Colchester,  Ac.  There  are,  likewise,  offi¬ 
cers  of  the  lorest,  who  are  termed  bailiffs.”  —  1  Bacon’s  Abridgment,  498-9. 

“  Bailiff  signifies  a  keeper  or  superintendent,  and  is  directly  derived  from  the  French 
word  bailli,  which  appears  to  come  from  the  word  balivus,  and  that  from  bagalus,  a  Latin 
word  signifying  generally  a  governor,  tutor,  or  superintendent.  .  .  The  French 
word  bailli  is  thus  explained  by  Richelet,  (Dictionaire,  Ac.:)  Bailli. —  He  who  in  a  prov¬ 
ince  has  the  superintendence  of  justice,  who  is  the  ordinary  judge  of  the  nobles,  who  is  their 
head  for  the  ban  and  arriere  ban,*  and  who  maintains  the  right  and  property  of  others 
against  those  who  attack  them.  .  .  All  the  various  officers  who  are  called  by  this 

name,  though  differing  as  to  the  nature  of  their  employments,  seem  to  have  some  kind 
of  superintendence  intrusted  to  them  by  their  superior.” — Political  Dictionary. 

“  Bailiff,  balivus.  From  the  French  word  bayliff,  that  is,  praefectus  provincice,  and  as 
the  name,  so  the  office  itself  was  answerable  to  that  of  France,  where  there  were  eight 
parliaments,  which  were  high  courts  from  whence  there  lay  no  appeal,  and  within  the 
precincts  of  the  several  parts  of  that  kingdom  which  belonged  to  each  parliament, 
there  were  several  provinces  to  which  justice  was  administired  by  certain  officers  called  bailiffs ; 
and  in  England  we  have  several  counties  in  which  justice  hath  been,  and  still  is,  in 
small  suits,  administered  to  the  inhabitants  by  the  officer  whom  we  now  call  sheriff,  or 
viscount;  (one  of  which  names  descends  from  the  Saxons,  the  other  from  the  Normans.) 
And,  though  the  sheriff  is  not  called  bailiff,  yet  it  was  probablo  that  was  one  of  his 
names  also,  because  the  county  is  often  called  balliva;  as  in  the  return  of  a  writ,  where 
the  person  is  not  arrested,  the  sheriff  saith,  infra-nominatus,  A.  B.  non  est  inventus  in 
balliva  mca,  Ac.;  (the  within  named  A.  B.  is  not  found  in  my  bailiwick,  Ac.)  And  in 
the  statute  of  Magna  Carta,  ch.  28,  and  14  Ed.  3,  ch.  9,  the  word  bailiff  seems  to  com¬ 
prise  as  well  sheriffs,  as  bailiffs  of  hundreds. 

“  Bailies,  in  Scotland,  are  magistrates  of  burghs,  possessed  of  certain  jurisdictions, 
having  the  same  power  within  their  territory  as  sheriffs  in  the  county.  .  . 

“  As  England  is  divided  into  counties, so  every  county  is  divided  into  hundreds;  within 
which,  in  ancient  times,  the  people  had  justice  administered  to  them  by  the  several  offi¬ 
cers  of  every  hundred,  which  were  the  bailiffs.  And  it  appears  by  Bracton,  (lib.  3,  tract. 
2,  ch.  34,)  that  bailiffs  of  hundreds  might  anciently  hold  plea  of  appeal  and  approvers; 
but  since  that  time  the  hundred  courts,  except  certain  franchises,  are  swallowed  in  the 
county  courts ;  and  now  the  bailiff’s  name  and  office  is  grown  into  contempt,  they  being 

*  “  Ban  and  arriere  ban ,  a  proclamation,  whereby  all  that  hold  lands  of  the  crown,  (except  some 
privileged  officers  and  citizens,)  are  summoned  to  meet  at  a  certain  place  in  order  to  serve  the  king 
in  his  wars,  either  personally,  or  by  proxy.” —  Boyer. 


168 


TRIAL  BY  JURY. 


with  them  to  keep  them  honest.  When  the  king’s  justices 
were  known  to  be  so  corrupt  and  servile  that  the  people  would 
not  even  trust  them  to  sit  alone,  in  jury  trials,  in  civil  actions, 


generally  officers  to  serve  writs,  Ac.,  within  their  liberties;  though,  in  other  respects, 
the  name  is  still  in  good  esteem,  for  the  chief  magistrates  in  divers  towns  are  called 
bailiffs;  and  sometimes  the  persons  to  whom  the  king’s  castles  are  committed  are 
termed  bailiffs,  as  the  bailiff  of  Dover  Castle,  Ac. 

“  Of  the  ordinary  bailiffs  there  are  several  sorts,  viz.,  bailiffs  of  liberties;  sheriffs’ 
bailiffs;  bailiffs  of  lords  of  manors;  bailiffs  of  husbandry,  Ac.  . 

“  Bailiffs  of  liberties  or  franchises  are  to  be  sworn  to  take  distresses,  truly  impanel 
jurors,  make  returns  by  indenture  between  them  and  sheriffs,  Ac.  .  . 

“  Bailiffs  of  courts  baron  summon  those  courts,  and  execute  the  process  thereof.  .  . 

“  Besides  these,  there  are  also  bailiffs  of  the  forest.  .  .  ” — Jacob’s  Law  Diet.  Tom¬ 
lin’s  do. 

“Bailiwick,  balliva,  —  is  not  only  taken  for  the  county,  hut  signifies  generally  that 
liberty  which  is  exempted  from  the  sheriff  of  the  county,  over  which  the  lord  of  the 
liberty  appointeth  a  bailiff,  with  such  powers  within  his  precinct  as  an  under-sheriff 
exerciseth  under  the  sheriff  of  the  county;  such  as  the  bailiff  of  Westminster.”  — 
Jacob’s  Law  Diet.  Tomlin’s  do. 

“A  bailiff  of  a  Lett,  Court-baron,  Manor,  Balivus  Beta,  Baronis,  Manerii.  —  He  is  one 
that  is  appointed  by  the  lord,  or  his  steward,  within  every  manor,  to  do  such  offices  as 
appertain  thereunto,  as  to  summon  the  court,  warn  the  tenants  and  resiants;  also,  to 
summon  the  Lcet  and  Homage,  levy  fines,  and  make  distresses,  Ac.,  of  which  you  may 
read  at  large  in  Kitchen’s  Court-leet  and  Court-baron.”  —  A  Law  Dictionary,  anonymous, 
(in  Suffolk  Law  Library .) 

“Bailiff.  —  In  England  an  officer  appointed  by  the  sheriff.  Bailiffs  are  either 
special,  and  appointed,  for  their  adroitness,  to  arrest  persons;  or  bailiffs  of  hundreds, 
who  collect  fines,  summon  juries,  attend  the  assizes,  and  execute  writs  and  processes. 
The  sheriff  in  England  is  the  king’s  bailiff. 

“  The  office  of  bailiff  formerly  was  high  and  honorable  in  England,  and  officers  under  that 
title  on  the  continent  are  still  invested  with  important  functions.” —  Webster. 

“  Baii.li,  (Scotland.)  —  An  alderman;  a  magistrate  who  is  second  in  rank  in  a  royal 
burgh.” —  Worcester. 

“  Baili,  or  Bailiff. — (Sorte  d’officier  de  justice.)  A  bailiff ;  a  sort  of  magistrate.” 
—  Boyer’s  French  Diet. 

“  By  some  opinions,  a  bailiff,  in  Magna  Carta,  eh.  28,  signifies  any  judge.”  —  Cunning¬ 
ham’s  Law  Diet. 

“  Bailiff.  —  In  the  court  of  the  Greek  emperors  there  was  a  grand  bajulos,  first  tutor 
of  the  emperor’s  children.  The  superintendent  of  foreign  merchants  seems  also  to  have 
been  called  bajulos;  and,  as  he  was  appointed  by  the  Venetians,  this  title  (balio)  was 
transferred  to  the  Venetian  ambassador.  Prom  Greece,  the  official  bajulos  (ballivus, 
bailli,  in  France;  bailiff,  in  England,)  was  introduced  into  the  south  of  Europe,  and 
denoted  a  superintendent;  hence  the  eight  ballivi  of  the  knights  of  St.  John,  which 
constitute  its  supreme  council.  In  France,  the  royal  bailiffs  were  commanders  of  the 
militia,  administrators  or  stewards  of  the  domains,  and  judges  of  their  districts.  In  the 
course  of  time,  only  the  first  duty  remained  to  the  bailiff;  hence  he  was  bailli  d’t'pce, 
and  laws  were  ad, ministered  in  his  name  by  a  lawyer,  as  his  deputy,  lieutenant  de  robe.  The 
seigniories,  with  which  high  courts  were  connected,  employed  bailiffs,  who  thus  consti- 


ILLEGAL  JUDGES. 


169 


how  preposterous  is  it  to  suppose  that  they  would  not  only 
suffer  them  to  sit,  but  to  sit  alone,  in  criminal  ones. 

It  is  entirely  incredible  that  Magna  Carta,  which  makes  such 
careful  provision  in  regard  to  the  king’s  justices  sitting  in  civil 
actions,  should  make  no  provision  whatever  as  to  their  sitting 
in  criminal  trials,  if  they  were  to  be  allowed  to  sit  in  them  at 
all.  Yet  Magna  Carta  has  no  provision  whatever  on  the 
subject.* * 


tuted,  almost  everywhere,  the  lowest  order  of  judges.  From  the  courts  of  the  nobility, 
the  appellation  passed  to  the  royal  courts;  from  thence  to  the  parliaments.  In  the 
greater  bailiwicks  of  cities  of  importance,  Henry  II.  established  a  collegial  constitution 
under  the  name  of  presidial  courts.  .  .  The  name  of  bailiff  was  introduced  into  Eng¬ 

land  with  William  I.  The  counties  were  also  called  bailiwicks,  ( ballivw ,)  while  the  sub¬ 
divisions  were  called  hundreds;  but,  as  the  courts  of  the  hundreds  have  long  since 
ceased,  the  English  bailiffs  are  only  a  kind  of  subordinate  officers  of  justice,  like  the 
French  huissiers.  These  correspond  very  nearly  to  the  officers  called  constables  in  the 
United  States.  Every  sheriff  has  some  of  them  under  him,  for  whom  he  is  answerable. 
In  some  cities  the  highest  municipal  officer  yet  bears  this  name,  as  the  high  bailiff  of 
Westminster.  In  London,  the  Lord  Mayor  is  at  the  same  time  bailiff,  (which  title  he 
bore  before  the  present  became  usual,)  and  administers,  in  this  quality,  the  criminal  juris¬ 
diction  of  the  city,  in  the  court  of  old  Bailey,  where  there  arc,  annually,  eight  sittings  of 
the  court,  for  the  city  of  London  and  the  county  of  Middlesex.  Usually ,  the  recorder  of 
London  supplies  his  place  as  judge.  In  some  instances  the  term  bailiff,  in  England,  is 
applied  to  the  chief  magistrates  of  towns,  or  to  the  commanders  of  particular  castles, 
as  that  of  Dover.  The  term  haillic,  in  Scotland,  is  applied  to  a  judicial  police-officer, 
having  powers  very  similar  to  those  of  justices  of  peace  in  the  United  States.”  —  En¬ 
cyclopedia  Americana. 

*  Perhaps  it  may  be  said  (and  such,  it  has  already  been  seen,  is  the  opinion  of  Coke 
and  others)  that  the  chapter  of  Magna  Carta,  that  “  no  bailiff  from  henceforth  shall  put 
any  man  to  his  open  law,  (put  him  on  trial,)  nor  to  an  oath  (that  is,  an  oath  of  self¬ 
exculpation)  upon  his  (the  bailiff’s)  own  accusation  or  testimony,  without  credible  wit¬ 
nesses  brought  in  to  prove  the  charge,”  is  itself  a  “  provision  in  regard  to  the  king’s 
justices  sitting  in  criminal  trials,”  and  therefore  implies  that  they  are  to  sit  in  such 
trials. 

But,  although  the  word  bailiff  includes  all  judicial,  as  well  as  other,  officers,  and  would 
therefore  in  this  case  apply  to  the  king’s  justices,  if  they  were  to  sit  in  criminal  trials; 
yet  this  particular  chapter  of  Magna  Carta  evidently  does  not  contemplate  “  bailiffs  ” 
while  acting  in  their  judicial  capacity,  (for  they  were  not  allowed  to  sit  in  criminal 
trials  at  all,)  but  only  in  the  character  of  witnesses;  and  that  the  meaning  of  the 
chapter  is,  that  the  simple  testimony  (simplici  loquela)  of  “no  bailiff,”  (of  whatever 
kind,)  unsupported  by  other  and  “  credible  witnesses,”  shall  be  sufficient  to  put  any 
man  on  trial,  or  to  his  oath  of  self-exculpation.* 

It  will  be  noticed  that  the  words  of  this  chapter  are  not,  “no  bailiff  of  ours,”  —  that 
is,  of  the  king,  —  as  in  some  other  chapters  of  Magna  Carta;  but  simply  “  no  bailiff,” 
&o.  The  prohibition,  therefore,  applies  to  all  “  bailiffs,”  —  to  those  chosen  by  the  pco- 

*  At  the  common  law,  parties,  in  both  civil  and  criminal  cases,  were  allowed  to  swear  in  their  own 
behalf;  and  it  will  be  so  again,  if  the  true  trial  by  jury  should  be  reestablished. 

15 


iro 


TRIAL  BY  JURY. 


But  what  would  appear  to  make  this  matter  absolutely  cer¬ 
tain  is,  that  unless  the  prohibition  that  “no  bailiff,  &c.,  of 
ours  shall  hold  pleas  of  our  crown,”  apply  to  all  officers  of  the 
king,  justices  as  well  as  others,  it  would  be  wholly  nugatory 
for  any  practical  or  useful  purpose,  because  the  prohibition 
could  be  evaded  by  the  king,  at  any  time,  by  simply  changing 
the  titles  of  his  officers.  Instead  of  calling  them  “sheriffs, 
coroners,  constables  and  bailiffs,”  he  could  call  them  “  justices ,” 
or  anything  else  he  pleased;  and  this  prohibition,  so  important 
to  the  liberty  of  the  people,  would  then  be  entirely  defeated. 
The  king  also  could  make  and  unmake  “justices”  at  his 
pleasure;  and  if  he  could  appoint  any  officers  whatever  to 
preside  over  juries  in  criminal  trials,  he  could  appoint  any 
tool  that  he  might  at  any  time  find  adapted  to  his  purpose.  It 
was  as  easy  to  make  justices  of  Jeffreys  and  Scroggs.  as  of 
any  other  material;  and  to  have  prohibited  all  the  king’s  offi¬ 
cers,  except  his  justices,  from  presiding  in  criminal  trials,  would 
therefore  have  been  mere  fool’s  play. 

We  can  all  perhaps  form  some  idea,  though  few  of  us  will 
be  likely  to  form  any  adequate  idea,  of  what  a  different  thing 


pie,  as  well  as  those  appointed  by  the  ting.  And  the  prohibition  is  obviously  founded 
upon  the  idea  (a  very  sound  one  in  that  age  certainly,  and  probably  also  in  this)  that 
public  officers  (whether  appointed  by  king  or  people)  have  generally,  or  at  least  fre- 
ipiently,  too  many  interests  and  animosities  against  accused  persons,  to  make  it  safe  tt> 
convict  any  man  on  their  testimony  alone. 

The  idea  of  Coke  and  others,  that  the  object  of  this  chapter  was  simply  to  forbid 
magistrates  to  put  a  man  on  trial,  when  there  were  no  witnesses  against  him,  but  only 
the  simple  accusation  or  testimony  of  the  magistrates  themselves,  before  whom  he  was 
to  be  tried,  is  preposterous;  for  that  would  be  equivalent  to  supposing  that  magistrates 
acted  iu  the  triple  character  of  judge,  jury  and  witnesses,  in  the  same  trial;  and  that, 
therefore,  in  such  cases,,  they  needed  to  be  prohibited  from  condemning  a  man  on  their 
ovvn  accusation  or  testimony  alone.  But  such  a  provision  would  have  been  unneces¬ 
sary  and  senseless,  for  two  reasons;  first,  because  the  bailiffs  or  magistrates  had  no 
power  to  “  hold  pleas  of  the  crown,”  still  less  to  try  or  condemn  a  man;  that  power  rest¬ 
ing  wholly  with  the  juries;  second,  because  if  bailiffs  or  magistrates  could  try  and  con¬ 
demn  a  man,  without  a  jury,  the  prohibition  upon  their  doing  so  upon  their  own  accusa¬ 
tion  or  testimony  alone,  would  give  no  additional  protection  to  the  accused,  so  loug  as 
these  same  bailiffs  or  magistrates  were  allowed  to  decide  what  weight  should  be  given, 
both  to  their  own  testimony  and  that  of  other  witnesses;  for,  if  they  wished  to  convict,  they 
would  of  course  decide  that  any  testimony,  however  frivolous  or  irrelevant,  in  addition 
to  their  own,  was  sufficient.  Certainly  a  magistrate  could  always  procure  witnesses 
enough  to  testify  to  something  or  other,  which  he  himself  could  decide  to  be  corrobora¬ 
tive  or  his  own  testimony.  And  thus  the  prohibition  would  be  defeated  in  fact,  though 
observed  in  form. 


ILLEGAL  JUDGES. 


171 


the  trial  by  jury  would  have  been  in  practice ,  and  of  what 
would  have  been  the  difference  to  the  liberties  of  England,  for 
five  hundred  years  last  past,  had  this  prohibition  of  Magna 
Carta,  upon  the  king’s  officers  sitting  in  the  trial  of  criminal 
cases,  been  observed. 

The  principle  of  this  chapter  of  Magna  Carta,  as  applicable 
to  the  governments  of  the  United  States  of  America,  forbids 
that  any  officer  appointed  either  by  the  executive  or  legislative 
power,  or  dependent  upon  them  for  their  salaries,  or  responsi¬ 
ble  to  them  by  impeachment,  should  preside  over  a  jury  in 
criminal  trials.  To  have  the  trial  a  legal  (that  is,  a  common 
law )  and  true  trial  by  jury,  the  presiding  officers  must  be 
chosen  by  the  people,  and  be  entirely  free  from  all  dependence 
upon,  and  all  accountability  to,  the  executive  and  legislative 
branches  of  the  government.* 


*  In  this  chapter  I  hare  called  the  justices  “presiding  officers,”  solely  for  the  want 
of  a  better  term.  They  are  not  “presiding  officers,”  in  the  sense  of  having  any 
authority  over  the  jury;  but  are  only  assistants  to,  and  teachers  and  servants  of,  the 
jury.  The  foreman  of  the  jury  is  properly  the  “  presiding  officer,”  so  far  as  there  is 
such  an  officer  at  all.  The  sheriff  has  no  authority  except  over  other  persons  than  the 
jury. 


CHAPTER  VIII. 


THE  FREE  ADMINISTRATION  OF  JUSTICE. 


The  free  administration  of  justice  was  a  principle  of  the 
common  law;  and  it  must  necessarily  be  a  part  of  every  sys¬ 
tem  of  government  which  is  not  designed  to  be  an  engine  in 
the  hands  of  the  rich  for  the  oppression  of  the  poor. 

In  saying  that  the  free  administration  of  justice  was  a  princi¬ 
ple  of  the  common  law,  I  mean  only  that  parties  were  subjected 
to  no  costs  for  jurors,  witnesses,  writs,  or  other  necessaries  for 
the  trial,  preliminary  to  the  trial  itself.  Consequently,  no  one 
could  lose  the  benefit  of  a  trial,  for  the  want  of  means  to 
defray  expenses.  Bat  after  the  trial ,  the  plaintiff  or  defendant 
Avas  liable  to  be  amerced,  (by  the  jury,  of  course.)  for  having 
troubled  the  court  with  the  prosecution  or  defence  of  an  unjust 
suit.*  But  it  is  not  likely  that  the  losing  party  Avas  subjected 
to  an  amercement  as  a  matter  of  course,  but  only  in  those 
cases  where  the  injustice  of  his  cause  was  so  evident  as  to 
make  him  inexcusable  in  bringing  it  before  the  courts. 

All  the  freeholders  were  required  to  attend  the  courts,  that 
they  might  seiwe  as  jurors  and  Avitnesses,  and  do  any  other 
service  that  could  legally  be  required  of  them;  and  their 
attendance  was  paid  for  by  the  state.  In  other  words,  their 
attendance  and  service  at  the  courts  Avere  part  of  the  rents 
Avhich  they  paid  the  state  for  their  lands. 

The  freeholders,  avIio  Avere  thus  required  always  to  attend 


*  2  Sullivan  Lectures ,  234—5.  3  JBlackstone ,  274-5,  376.  Sullivan  says  that  both 

plaintiffs  and  defendants  were  liable  to  amercement.  Blackstone  speaks  of  plaintiffs 
being  liable,  without  saying  whether  defendants  were  so  or  not.  AVhat  the  rule  really 
was  I  do  not  know.  There  would  seem  to  be  some  reason  in  allowing  defendants  to 
defend  themselves,  at  their  own  charges,  without  exposing  themselves  to  amercement  in 
ease  of  failure. 


THE  FREE  ADMINISTRATION  OF  JUSTICE. 


173 


the  courts,  were  doubtless  the  only  witnesses  who  were  usually 
required  in  civil  causes.  This  was  owing  to  the  fact  that,  in 
those  days,  when  the  people  at  large  could  neither  write  nor 
read,  few  contracts  were  put  in  writing.  The  expedient 
adopted  for  proving  contracts,  was  that  of  making  them  in 
the  presence  of  witnesses,  who  could  afterwards  testify  to  the 
transactions.  Most  contracts  in  regard  to  lands  were  made 
at  the  courts,  in  the  presence  of  the  freeholders  there  assem¬ 
bled.* 

In  the  king’s  courts  it  was  specially  provided  by  Magna 
Carta  that  “justice  and  right”  should  not  be  “sold;”  that 
is,  that  the  king  should  take  nothing  from  the  parties  for 
administering  justice. 

The  oath  of  a  party  to  the  justice  of  his  cause  was  all  that 
was  necessary  to  entitle  him  to  the  benefit  of  the  courts  free 
of  all  expense;  (except  the  risk  of  being  amerced  after  the 
trial,  in  case  the  jury  should  think  he  deserved  it.f) 

This  principle  of  the  free  administration  of  justice  connects 
itself  necessarily  with  the  trial  by  jury,  because  a  jury  could  not 
rightfully  give  judgment  against  any  man ,  in  either  a  civil  or 
criminal  case ,  if  they  had  any  reason  to  suppose  he  had  been 
unable  to  procure  his  witnesses. 

The  true  trial  by  jury  would  also  compel  the  free  adminis¬ 
tration  of  justice  from  another  necessity,  viz.,  that  of  prevent¬ 
ing  private  quarrels  ;  because,  unless  the  government  enforced 
a  man’s  rights  and  redressed  his  wrongs,  free  of  expense  to 
him,  a  jury  would  be  bound  to  protect  him  in  taking  the  law 
into  his  own  hands.  A  man  has  a  natural  right  to  enforce  his 
own  rights  and  redress  his  own  wrongs.  If  one  man  owe 
another  a  debt,  and  refuse  to  pay  it,  the  creditor  has  a  natural 
right  to  seize  sufficient  property  of  the  debtor,  wherever  he 

*  When  any  other  witnesses  than  freehoiders  were  required  in  a  civil  suit,  I  am  not 
•aware  of  tho  manner  in  which  their  attendance  was  procured ;  but  it  was  doubtless  done 
at  the  expense  either  of  tho  state  or  of  tho  witnesses  themselves.  And  it  was  doubt¬ 
less  the  same  in  criminal  cases. 

+  “  All  claims  were  established  in  the  first  stage  by  the  oath  of  the  plaintiff,  except 
when  otherwise  specially  directed  by  the  law.  The  oath,  by  which  any  claim  was  sup¬ 
ported,  was  called  the  fore-oath,  or  ‘  Prmjuramentum,’  and  it  was  the  foundation  of  his 
suit.  One  of  the  cases  which  did  not  require  this  initiatory  confirmation,  was  when 
•cattle  could  be  tracked  into  another  man’s  land,  and  then  the  foot-mark  stood  for  the 
fore-oath.”  —  2  Palgrave’s  Rise  and  Progress,  &a..  111. 

15* 


174 


TKIAL  BY  JURY. 


can  find  it,  to  satisfy  the  debt.  If  one  man  commit  a  trespass 
upon  the  person,  property  or  character  of  another,  the  injured 
party  has  a  natural  right,  either  to  chastise  the  aggressor,  or 
to  take  compensation  for  the  injury  out  of  his  property.  But 
as  the  government  is  an  impartial  party  as  between  these 
individuals,  it  is  more  likely  to  do  exact  justice  between  them 
than  the  injured  individual  himself  would  do.  The  govern¬ 
ment,  also,  having  more  power  at  its  command,  is  likely  to 
right  a  man’s  wrongs  more  peacefully  than  the  injured,  party 
himself  could  do  it.  If,  therefore,  the  government  will  do  the 
work  of  enforcing  a  man’s  rights,  and  redressing  his  wrongs, 
promptly ,  and  free  of  expense  to  him he  is  under  a  moral 
obligation  to  leave  the  work  in  the  hands  of  the  government; 
but  not  otherwise.  When  the  government  forbids  him  to 
enforce  his  own  rights  or  redress  his  own  wrongs,  and  deprives 
him  of  all  means  of  obtaining  justice,  except  on  the  condition 
of  his  employing  the  government  to  obtain  it  for  him,  and  of 
paying  the  government  for  doing  it,  the  government  becomes 
itself  the  protector  and  accomplice  of  the  wrong-doer.  If  the 
government  will  forbid  a  man  to  protect  his  own  rights,  it 
is  bound  to  do  it  for  him,  free  of  expense  to  him.  And  so  long 
as  government  refuses  to  do  this,  juries,  if  they  knew  their 
duties,  would  protect  a  man  in  defending  his  own  rights. 

Under  the  prevailing  system,  probably  one  half  of  the  com¬ 
munity  are  virtually  deprived  of  all  protection  for  their  rights, 
except  what  the  criminal  law  affords  them.  Courts  of  justice, 
for  all  civil  suits,  are  as  effectually  shut  against  them,  as  though 
it  were  done  by  bolts  and  bars.  Being  forbidden  to  maintain 
their  own  rights  by  force,  —  as,  for  instance,  to  compel  the  pay¬ 
ment  of  debts,  —  and  being  unable  to  pay  the  expenses  of  civil 
suits,  they  have  no  alternative  but  submission  to  many  acts 
of  injustice,  against  which  the  government  is  bound  either  to 
protect  them,  free  of  expense ,  or  allow  them  to  protect  them¬ 
selves. 

There  would  be  the  same  reason  in  compelling  a  party  to 
pay  the  judge  and  jury  for  their  services,  that  there  is  in 
compelling  him  to  pay  the  witnesses,  or  any  other  necessary 
charges.* 


*  Among  the  necessary  expenses  of  suits,  should  be  reckoned  reasonable  compensation 
to  counsel,  for  they  are  nearly  or  quite  as  important  to  the  administration  of  justice. 


THE  FREE  ADMINISTRATION  OF  JUSTICE. 


175 


This  compelling  parties  to  pay  the  expenses  of  civil  suits  is 
one  of  the  many  cases  in  which  government  is  false  to  the 
fundamental  principles  on  which  free  government  is  based. 
What  is  the  object  of  government,  but  to  protect  men’s  rights? 
On  what  principle  does  a  man  pay  his  taxes  to  the  govern¬ 
ment,  except  on  that  of  contributing  his  proportion  towards 
the  necessary  cost  of  protecting  the  rights  of  all?  Yet,  when 
his  own  rights  are  actually  invaded,  the  government,  which 
he  contributes  to  support,  instead  of  fulfilling  its  implied  con¬ 
tract,  becomes  his  enemy,  and  not  only  refuses  to  protect  his 
rights,  (except  at  his  own  cost,)  but  even  forbids  him  to  do  it 
himself. 

All  free  government  is  founded  on  the  theory  of  voluntary 
association ;  and  on  the  theory  that  all  the  parties  to  it  volun¬ 
tarily  pay  their  taxes  for  its  support,  on  the  condition  of 
receiving  protection  in  return.  But  the  idea  that  any  poor 
man  would  voluntarily  pay  taxes  to  build  up  a  government, 
which  will  neither  protect  his  rights,  (except  at  a  cost  which 
he  cannot  meet,)  nor  suffer  himself  to  protect  them  by  such 
means  as  may  be  in  his  power,  is  absurd. 

Under  the  prevailing  system,  a  large  portion  of  the  lawsuits 
determined  in  courts,  are  mere  contests  of  purses  rather  than 
of  rights.  And  a  jury,  sworn  to  decide  causes  “according  to 
the  evidence”  produced,  are  quite  likely,  for  aught  they  them¬ 
selves  can  know,  to  be  deciding  merely  the  comparative  length 
of  the  parties’  purses,  rather  than  the  intrinsic  strength  of  their 
respective  rights.  Jurors  ought  to  refuse  to  decide  a  cause  at 
all,  except  upon  the  assurance  that  all  the  evidence,  necessary 


as  are  judges,  jurors,  or  witnesses;  and  the  universal  practice  of  employing  them,  both 
on  the  part  of  governments  and  of  private  persons,  shows  that  their  importance  is  gen¬ 
erally  understood.  As  a  mere  matter  of  economy,  too,  it  would  be  wise  for  the  gov¬ 
ernment  to  pay  them,  rather  than  they  should  not  be  employed ;  because  they  collect 
and  arrange  the  testimony  and  the  law  beforehand,  so  as  to  be  able  to  present  the  whole 
case  to  the  court  and  jury  intelligibly,  and  in  a  short  space  of  time.  Whereas,  if  they 
were  not  employed,  the  court  and  jury  would  be  under  the  necessity  either  of  spending 
much  more  time  than  now  in  the  investigation  of  causes,  or  of  despatching  them  in 
haste,  and  with  little  regard  to  justice.  They  would  be  very  likely  to  do  the  latter, 
thus  defeating  the  whole  object  of  the  people  in  establishing  courts. 

To  prevent  the  abuse  of  this  right,  it  should  perhaps  be  left  discretionary  with  the 
jury  in  each  case  to  determine  whether  the  counsel  should  receive  any  pay  —  and,  if 
any,  how  much  —  from  the  government. 


176 


TRIAL  BY  JURY. 


to  a  full  knowledge  of  the  cause,  is  produced.  This  assurance 
they  can  seldom  have,  unless  the  government  itself  produces 
all  the  witnesses  the  parties  desire. 

In  criminal  cases,  the  atrocity  of  accusing  a  man  of  crime, 
and  then  condemning  him  unless  he  prove  his  innocence  at  his 
own  charges,  is  so  evident  that  a  jury  could  rarely,  if  ever,  be 
justified  in  convicting  a  man  under  such  circumstances. 

But  the  free  administration  of  justice  is  not  only  indispensa¬ 
ble  to  the  maintenance  of  right  between  man  and  man;  it 
would  also  promote  simplicity  and  stability  in  the  laws.  The 
mania  for  legislation  would  be,  in  an  important  degree,  re¬ 
strained,  if  the  government  were  compelled  to  pay  the  expenses 
of  all  the  suits  that  grew  out  of  it. 

The  free  administration  of  justice  would  diminish  and  nearly 
extinguish  another  great  evil,  — that  of  malicious  civil  suits. 
It  is  an  old  saying,  that  11  multi  litigant  in  for o ,  non  nt  aliquid 
lucrenlur,  sed  ut  vexant  alios.'”  (Many  litigate  in  court,  not  that 
they  may  gain  anything,  but  that  they  may  harass  others.) 
Many  men,  from  motives  of  revenge  and  oppression,  are  wil¬ 
ling  to  spend  their  own  money  in  prosecuting  a  groundless 
suit,  if  they  can  thereby  compel  their  victims,  who  are  less 
able  than  themselves  to  bear  the  loss,  to  spend  money  in  the 
defence.  Under  the  prevailing  system,  in  which  the  parties 
pay  the  expenses  of  their  suits,  nothing  but  money  is  necessary 
to  enable  any  malicious  man  to  commence  and  prosecute  a 
groundless  suit,  to  the  terror,  injury,  and  perhaps  ruin,  of  an¬ 
other  man.  In  this  way,  a  court  of  justice,  into  which  none 
but  a  conscientious  'plaintiff  certainly  should  ever  be  allowed 
to  enter,  becomes  an  arena  into  which  any  rich  and  revengeful 
oppressor  may  drag  any  man  poorer  than  himself,  and  harass, 
terrify,  and  impoverish  him,  to  almost  any  extent.  It  is  a  scan¬ 
dal  and  an  outrage,  that  government  should  suffer  itself  to  be 
made  an  instrument,  in  this  way,  for  the  gratification  of  pri¬ 
vate  malice.  We  might  nearly  as  well  have  no  courts  of 
justice,  as  to  throw  them  open,  as  we  do,  for  such  flagitious 
uses.  Yet  the  evil  probably  admits  of  no  remedy  except  a 
free  administration  of  justice.  Under  a  free  system,  plaintiffs 
could  rarely  be  influenced  by  motives  of  this  kind ;  because 
they  could  put  their  victim  to  little  or  no  expense,  neither 


THE  FREE  ADMINISTRATION  OF  JUSTICE. 


177 


pending  the  suit,  (which  it  is  the  object  of  the  oppressor  to  do,) 
nor  at  its  termination.  Besides,  if  the  ancient  common  law 
practice  should  be  adopted,  of  amercing  a  party  for  troubling 
the  courts  with  groundless  suits,  the  prosecutor  himself  would, 
in  the  end,  be  likely  to  be  amerced  by  the  jury,  in  such  a  man¬ 
ner  as  to  make  courts  of  justice  a  very  unprofitable  place  for  a 
man  to  go  to  seek  revenge. 

In  estimating  the  evils  of  this  kind,  resulting  from  the  pres¬ 
ent  system,  we  are  to  consider  that  they  are  not,  by  any  means, 
confined  to  the  actual  suits  in  which  this  kind  of  oppression  is 
practised;  but  we  are  to  include  all  those  cases  in  which  the 
fear  of  such  oppression  is  used  as  a  weapon  to  compel  men 
into  a  surrender  of  their  rights. 


CHAPTER  IX. 


THE  CRIMINAL  INTENT. 

It  is  a  maxim  of  the  common  law  that  there  can  be  no 
crime  without  a  criminal  intent.  And  it  is  a  perfectly  clear 
principle,  although  one  which  judges  have  in  a  great  measure 
overthrown  in  practice,  that  jurors  are  to  judge  of  the  moral 
intent  of  an  accused  person,  and  hold  him  guiltless,  whatever 
his  act,  unless  they  find  him  to  have  acted  with  a  criminal 
intent;  that  is,  with  a  design  to  do  what  he  knew  to  be  crim¬ 
inal. 

This  principle  is  clear,  because  the  question  for  a  jury  to 
determine  is,  whether  the  accused  be  guilty,  or  not  guilty. 
Guilt  is  a  personal  quality  of  the  actor,  —  not  necessarily 
involved  in  the  act,  but  depending  also  upon  the  intent  or 
motive  with  which  the  act  was  done.  Consequently,  the  jury 
must  find  that  he  acted  from  a  criminal  motive,  before  they 
can  declare  him  guilty. 

There  is  no  moral  justice  in,  nor  any  political  necessity  for, 
punishing  a  man  for  any  act  whatever  that  he  may  have  com¬ 
mitted,  if  he  have  done  it  without  any  criminal  intent.  There 
can  be  no  moral  justice  in  punishing  for  such  an  act,  because, 
there  having  been  no  criminal  motive ,  there  can  have  been  no 
other  motive  which  justice  can  take  cognizance  of,  as  demand¬ 
ing  or  justifying  punishment.  There  can  be  no  jjolitical  neces¬ 
sity  for  punishing,  to  warn  against  similar  acts  in  future, 
because,  if  one  man  have  injured  another,  however  uninten¬ 
tionally,  he  is  liable,  and  justly  liable,  to  a  civil  suit  for  dam¬ 
ages  ;  and  in  this  suit  he  will  be  compelled  to  make  compen¬ 
sation  for  the  injury,  notwithstanding  his  innocence  of  any 
intention  to  injure.  He  must  bear  the  consequences  of  his  own 
act,  instead  of  throwing  them  upon  another,  however  innocent 


THE  CRIMINAL  INTENT. 


179 


he  may  have  been  of  any  intention  to  do  wrong.  And  the 
damages  lie  will  have  to  pay  will  be  a  sufficient  warning  to 
him  not  to  do  the  like  act  again. 

If  it  be  alleged  that  there  are  crimes  against  the  public,  (as 
treason,  for  example,  or  any  other  resistance  to  government,) 
for  which  private  persons  can  recover  no  damages,  and  that 
there  is  a  political  necessity  for  punishing  for  such  offences, 
even  though  the  party  acted  conscientiously,  the  answer  is,  — 
the  government  must  bear  with  all  resistance  that  is  not  so 
clearly  wrong  as  to  give  evidence  of  criminal  intent.  In  other 
words,  the  government,  in  all  its  acts,  must  keep  itself  so 
clearly  within  the  limits  of  justice,  as  that  twelve  men,  taken 
at  random,  will  all  agree  that  it  is  in  the  right,  or  it  must  incur 
the  risk  of  resistance,  without  any  power  to  punish  it.  This 
is  the  mode  in  which  the  trial  by  jury  operates  to  prevent  the 
government  from  falling  into  the  hands  of  a  party,  or  a  fac¬ 
tion,  and  to  keep  it  within  such  limits  as  all ,  or  substantially 
all ,  the  people  are  agreed  that  it  may  occupy. 

This  necessity  for  a  criminal  intent,  to  justify  conviction, 
is  proved  by  the  issue  which  the  jury  are  to  try,  and  the  ver¬ 
dict  they  are  to  pronounce.  The  “issue”  they  are  to  try  is, 
u  guilty  ”  or  “  not  guilty.”  And  those  are  the  terms  they  are 
required  to  use  in  rendering  their  verdicts.  But  it  is  a  plain 
falsehood  to  say  that  a  man  is  “  guilty”  unless  he  have  done 
an  act  which  he  knew  to  be  criminal. 

This  necessity  for  a  criminal  intent  —  in  other  words,  for 
guilt  —  as  a  preliminary  to  conviction,  makes  it  impossible 
that  a  man  can  be  rightfully  convicted  for  an  act  that  is  intrin¬ 
sically  innocent,  though  forbidden  by  the  government;  because 
guilt  is  an  intrinsic  quality  of  actions  and  motives,  and  not  one 
that  can  be  imparted  to  them  by  arbitrary  legislation.  All  the 
efforts  of  the  government,  therefore,  to  “  make  offences  by  stat¬ 
ute”'  out  of  acts  that  are  not  criminal  by  nature,  must  neces¬ 
sarily  be  ineffectual,  unless  a  jury  will  declare  a  man  “  guilty  ” 
for  an  act  that  is  really  innocent. 

The  corruption  of  judges,  in  their  attempts  to  uphold  the 
arbitrary  authority  of  the  government,  by  procuring  the  con¬ 
viction  of  individuals  for  acts  innocent  in  themselves,  and  for¬ 
bidden  only  by  some  tyrannical  statute,  and  the  commission 


ISO 


TRIAL  BY  JURY. 


of  which  therefore  indicates  no  criminal  intent,  is  very  appar¬ 
ent. 

To  accomplish  this  object,  they  have  in  modern  times  held 
it  to  be  unnecessary  that  indictments  should  charge,  as  by  the 
common  law  they  were  required  to  do,  that  an  act  was  done 
“ wickedly ,”  “ feloniously “  with  malice  aforethought”  or  in 
any  other  manner  that  implied  a  criminal  intent,  without 
which  there  can  be  no  criminality ;  but  that  it  is  sufficient  to 
charge  simply  that  it  was  done  “  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided.  "1  This  form  of  in¬ 
dictment  proceeds  plainly  upon  the  assumption  that  the  gov¬ 
ernment  is  absolute,  and  that  it  has  authority  to  prohibit 
any  act  it  pleases,  however  innocent  in  its  nature  the  act 
may  be.  Judges  have  been  driven  to  the  alternative  of 
either  sanctioning  this  new  form  of  indictment,  (which  they 
never  had  any  constitutional  right  to  sanction,)  or  of  seeing 
the  authority  of  many  of  the  statutes  of  the  government  fall 
to  the  ground  ;  because  the  acts  forbidden  by  the  statutes  were 
so  plainly  innocent  in  their  nature,  that  even  the  government 
itself  had  not  the  face  to  allege  that  the  commission  of  them 
implied  or  indicated  any  criminal  intent. 

To  get  rid  of  the  necessity  of  showing  a  criminal  intent, 
and  thereby  further  to  enslave  the  people,  by  reducing  them  to 
the  necessity  of  a  blind,  unreasoning  submission  to  the  arbi¬ 
trary  will  of  the  government,  and  of  a  surrender  of  all  right, 
on  their  own  part,  to  judge  what  are  their  constitutional  and 
natural  rights  and  liberties,  courts  have  invented  another  idea, 
which  they  have  incorporated  among  the  pretended  maxims , 
upon  which  they  act  in  criminal  trials,  viz.,  that  £t  ignorance 
of  the  law  excuses  no  one.”  As  if  it  were  in  the  nature  of  things 
possible  that  there  could  be  an  excuse  more  absolute  and  com¬ 
plete.  What  else  than  ignorance  of  the  law  is  it  that  excuses 
persons  under  the  years  of  discretion,  and  men  of  imbecile 
minds'?  What  else  than  ignorance  of  the  law  is  it  that 
excuses  judges  themselves  for  all  their  erroneous  decisions? 
Nothing.  They  are  every  day  committing  errors,  which 
would  be  crimes,  but  for  their  ignorance  of  the  law.  And  yet 
these  same  judges,  who  claim  to  be  learned  in  the  law,  and 
who  yet  could  not  hold  their  offices  for  a  day,  but  for  the 


THE  CRIMINAL  INTENT. 


181 


allowance  which  the  law  makes  for  their  ignorance,  are  con¬ 
tinually  asserting  it  to  be  a  “maxim”  that  “  ignorance  of  the 
law  excuses  no  one (by  which,  of  course,  they  really  mean 
that  it  excuses  no  one  but  themselves ;  and  especially  that  it 
excuses  no  unlearned  man,  who  comes  before  them  charged 
with  crime.) 

This  preposterous  doctrine,  that  “ignorance  of  the  law 
excuses  no  one,”  is  asserted  by  courts  because  it  is  an  indis¬ 
pensable  one  to  the  maintenance  of  absolute  power  in  the  gov¬ 
ernment.  It  is  indispensable  for  this  purpose,  because,  if  it  be 
once  admitted  that  the  people  have  any  rights  and  liberties 
which  the  government  cannot  lawfully  take  from  them,  then 
the  question  arises  in  regard  to  every  statute  of  the  govern¬ 
ment,  whether  it  be  law,  or  not ;  that  is,  whether  it  infringe, 
or  not,  the  rights  and  liberties  of  the  people.  Of  this  question 
every  man  must  of  course  judge  according  to  the  light  in  his 
own  mind.  And  no  man  can  be  convicted  unless  the  jury 
find,  not  only  that  the  statute  is  law,  —  that  it  does  not  infringe 
the  rights  and  liberties  of  the  people,  —  but  also  that  it  was 
so  clearly  law,  so  clearly  consistent  with  the  rights  and  liber¬ 
ties  of  the  people,  as  that  the  individual  himself,  who  trans¬ 
gressed  it,  knew  it  to  be  so,  and  therefore  had  no  moral  excuse 
for  transgressing  it.  Governments  see  that  if  ignorance  of  the 
law  were  allowed  to  excuse  a  man  for  any  act  whatever,  it 
must  excuse  him  for  transgressing  all  statutes  whatsoever,  which 
he  himself  thinks  inconsistent  with  his  rights  and  liberties. 
But  such  a  doctrine  would  of  course  be  inconsistent  with  the 
maintenance  of  arbitrary  power  by  the  government;  and 
hence  governments  will  not  allow  the  plea,  although  they  will 
not  confess  their  true  reasons  for  disallowing  it. 

The  only  reasons,  (if  they  deserve  the  name  of  reasons),  that 
I  ever  knew  given  for  the  doctrine  that  ignorance  of  the  law 
excuses  no  one,  are  these  : 

1.  “The  reason  for  the  maxim  is  that  of  necessity.  It  pre¬ 
vails,  ‘not  that  all  men  know  the  law,  but  because  it  is  an 
excuse  which  every  man  will  make,  and  no  man  can  tell  how 
to  confute  him.’  —  Selden,  (as  quoted  in  the  2d  edition  of 
Starkie  on  Slander,  Prelim.  Disc.,  p.  140,  note.)”  —  Law  Mag¬ 
azine,  ( London ,)  vol.  27,  p.  97. 

16 


132 


TRIAL  BY  JURY. 


This  reason  impliedly  admits  that  ignorance  of  the  law  is, 
intrinsically ,  an  ample  and  sufficient  excuse  for  a  crime;  and 
lhat  the  excuse  ought  to  be  allowed,  if  the  fact  of  ignorance 
could  but  be  ascertained.  But  it  asserts  that  this  fact  is  inca¬ 
pable  of  being  ascertained,  and  that  therefore  there  is  a  neces¬ 
sity  for  punishing  the  ignorant  and  the  knowing  —  that  is,  the 
innocent  and  the  guilty  —  without  discrimination. 

This  reason  is  worthy  of  the  doctrine  it  is  used  to  uphold ; 
as  if  a  plea  of  ignorance,  any  more  than  any  other  plea,  must 
necessarily  be  believed  simply  because  it  is  urged  ;  and  as  if 
it  were  not  a  common  and  every-day  practice  of  courts  and 
juries,  in  both  civil  and  criminal  cases,  to  determine  the  men¬ 
tal  capacity  of  individuals;  as,  for  example,  to  determine 
whether  they  are  of  sufficient  mental  capacity  to  make  rea¬ 
sonable  contracts;  whether  they  are  lunatic;  whether  they 
are  compotes  mentis ,  “of  sound  mind  and  memory,”  &e.  &, c. 
And  there  is  obviously  no  more  difficulty  in  a  jury’s  determin¬ 
ing  whether  an  accused  person  knew  the  law  in  a  criminal 
case,  than  there  is  in  determining  any  of  these  other  questions 
that  are  continually  determined  in  regard  to  a  man’s  mental 
capacity.  For  the  question  to  be  settled  by  the  jury  is  not 
whether  the  accused  person  knew  the  particular  penalty 
attached  to  his  act,  (for  at  common  law  no  one  knew  what 
penalty  a  jury  would  attach  to  an  offence,)  but  whether  he 
knew  that  his  act  was  intrinsically  criminal.  If  it  were 
intrinsically  criminal ,  it  was  criminal  at  common  law.  If  it 
was  not  intrinsically  criminal,  it  was  not  criminal  at  common 
law.  (At  least,  such  was  the  general  principle  of  the  common 
law.  There  may  have  been  exceptions  in  practice,  owing  to 
the  fact  that  the  opinions  of  men,  as  to  what  was  intrinsically 
criminal,  may  not  have  been  in  all  cases  correct.) 

A  jury,  then,  in  judging  whether  an  accused  person  knew 
his  act  to  be  illegal,  were  bound  first  to  use  their  own  judg¬ 
ments,  as  to  whether  the  act  were  intrinsically  criminal.  If 
their  own  judgments  told  them  the  act  was  intrinsically  and 
clearly  criminal,  they  would  naturally  and  reasonably  infer 
that  the  accused  also  understood  that  it  was  intrinsically  crim¬ 
inal,  (and  consequently  illegal,)  unless  it  should  appear  that  he 
was  either  below  themselves  in  the  scale  of  intellect,  or  had 


THE  CRIMINAL  INTENT. 


183 


had  less  opportunities  of  knowing  what  acts  were  criminal.  In 
short,  they  would  judge,  from  any  and  every  means  they 
might  have  of  judging;  and  if  they  had  any  reasonable  doubt 
that  he  knew  his  act  to  be  criminal  in  itself,  they  would  be 
bound  to  acquit  him. 

The  second  reason  that  has  been  offered  for  the  doctrine 
that  ignorance  of  the  law  excuses  no  one,  is  this: 

“Ignorance  of  the  municipal  law  of  the  kingdom,  or  of  the 
penalty  thereby  inflicted  on  offenders,  doth  not  excuse  any  that 
is  of  the  age  of  discretion  and  compos  mentis,  from  the  penalty 
of  the  breach  of  it;  because  every  person,  of  the  age  of  dis¬ 
cretion  and  compos  mentis,  is  bound  to  know  the  law ,  and  pre¬ 
sumed  to  do  so.  Ignoranli a  eorum ,  quce  quis  scire  tenetur  non 
excusat.”  (Ignorance  of  those  things  which  every  one  is 
bound  to  know,  does  not  excuse.)  —  1  Hale  s  Pleas  of  the 
Crown ,  42.  Doctor  and  Student,  Dialog.  2,  ch.  46.  Law 
Magazine ,  ( London ,)  vol.  27,  p.  97. 

The  sum  of  this  reason  is,  that  ignorance  of  the  law  excuses 
no  one,  (who  is  of  the  age  of  discretion  and  is  compos  mentis,) 
because  every  such  person  “  is  bound  to  know  the  law.”  But 
this  is  giving  no  reason  at  all  for  the  doctrine,  since  saying  that 
a  man  “is  bound  to  know  the  law,”  is  only  saying,  in  another 
form ,  that  “  ignorance  of  the  law  does  not  excuse  him.” 
There  is  no  difference  at  all  in  the  two  ideas.  To  say,  there¬ 
fore,  that  “  ignorance  of  the  law  excuses  no  one,  because  every 
one  is  bound  to  know  the  law,”  is  only  equivalent  to  saying 
that  “  ignorance  of  the  law  excuses  no  one,  because  ignorance 
of  the  law  excuses  no  one.”  It  is  merely  reasserting  the  doc¬ 
trine,  without  giving  any  reason  at  all. 

And  yet  these  reasons,  which  are  really  no  reasons  at  all, 
are  the  only  ones,  so  far  as  I  know,  that  have  ever  been  offered 
for  this  absurd  and  brutal  doctrine. 

The  idea  suggested,  that  “  the  age  of  discretion”  determines 
the  guilt  of  a  person,  —  that  there  is  a  particular  age,  prior  to 
which  all  persons  alike  should  be  held  incapable  of  knowing 
any  crime,  and  subsequent  to  which  all  persons  alike  should 
be  held  capable  of  knowing  all  crimes,  —  is  another  of  this  most 
ridiculous  nest  of  ideas.  All  mankind  acquire  their  knowledge 
of  crimes,  as  they  do  of  other  things,  gradually.  Some  they 
learn  at  an  early  age;  others  not  till  a  later  one.  One  individ- 


184 


TRIAL  BY  JURY. 


ual  acquires  a  knowledge  of  crimes,  as  he  does  of  arithmetic, 
at  an  earlier  age  than  others  do.  And  to  apply  the  same  pre¬ 
sumption  to  all,  on  the  ground  of  age  alone,  is  not  only  gross 
injustice,  but  gross  folly.  A  universal  presumption  might, 
with  nearly  or  quite  as  much  reason,  be  founded  upon  weight, 
or  height,  as  upon  age.* 

This  doctrine,  that  “  ignorance  of  the  law  excuses  no  one,” 
is  constantly  repeated  in  the  form  that  “every  one  is  bound  to 
know  the  law.”  The  doctrine  is  true  in  civil  matters,  espec¬ 
ially  in  contracts,  so  far  as  this:  that  no  man,  who  has  the 
ordinary  capacity  to  make  reasonable  contracts,  can  escape 
the  consequences  of  his  own  agreement,  on  the  ground  that  he 
did  not  know  the  law  applicable  to  it.  When  a  man  makes  a 
contract,  he  gives  the  other  party  rights;  and  he  must  of  neces¬ 
sity  judge  for  himself,  and  take  his  own  risk,  as  to  what  those 
rights  are,  —  otherwise  the  contract  would  not  be  binding,  and 
men  could  not  make  contracts  that  would  convey  rights  to 
each  other.  Besides,  the  capacity  to  make  reasonable  con- 

*  This  presumption,  founded  upon  age  alone,  is  as  absurd  in  civil  matters  as  in  crim¬ 
inal.  What  can  be  more  entirely  ludicrous  than  the  idea  that  all  men  (not  manifestly 
imbecile)  become  mentally  competent  to  make  all  contracts  whatsoever  on  the  day 
they  become  twenty-one  years  of  age  1  —  and  that,  previous  to  that  day,  no  man 
becomes  competent  to  make  any  contract  whatever,  except  for  the  present  supply  of 
the  most  obvious  wants  of  nature  1  In  reason,  a  man’s  legal  competency  to  make  bind~ 
mg  contracts,  in  any  and  every  case  whatever,  depends  wholly  upon  his  mental  capac¬ 
ity  to  make  reasonable  contracts  in  each  particular  case.  It  of  course  requires  more 
capacity  to  make  a  reasonable  contract  in  some  cases  than  in  others.  It  requires,  for 
example,  more  capacity  to  make  a  reasonable  contract  in  the  purchase  of  a  large 
estate,  than  in  the  purchase  of  a  pair  of  shoes.  But  the  mental  capacity  to  make  a 
reasonable  contract,  in  any  particular  case,  is,  in  reason,  the  only  legal  criterion  of  the 
legal  competency  to  make  a  binding  contract  in  that  case.  The  age,  whether  more  or 
less  than  twenty-one  years,  is  of  no  legal  consequence  whatever,  except  that  it  is  entitled 
to  some  consideration  as  evidence  of  capacity. 

It  may  be  mentioned,  in  this  connection,  that  the  rules  that  prevail,  that  every  man 
is  entitled  to  freedom  from  parental  authority  at  twenty-one  years  of  age,  and  no  one 
before  that  age,  are  of  the  same  class  of  absurdities  with  those  that  have  been  men¬ 
tioned.  The  only  ground  on  which  a  parent  is  ever  entitled  to  exercise  authority  over 
his  child,  is  that  the  child  is  incapable  of  taking  reasonable  care  of  himself.  The  child 
would  be  entitled  to  his  freedom  from  his  birth,  if  he  were  at  that  time  capable  of 
taking  reasonable  care  of  himself.  Some  become  capable  of  taking  care  of  themselves 
at  an  earlier  age  than  others.  And  whenever  any  one  beoomes  capable  of  taking  rea¬ 
sonable  care  of  himself,  and  not  until  then,  he  is  entitled  to  his  freedom,  be  his  age  more 
or  less. 

These  principles  would  prevail  under  the  true  trial  by  jury,  the  jury  being  the  judges 
of  the  capacity  of  every  individual  whose  capacity  should  be  called  in  question. 


THE  CRIMINAL  INTENT. 


185 


tracts,  implies  and  includes  a  capacity  to  form  a  reasonable 
judgment  as  to  the  law  applicable  to  them.  But  in  criminal 
matters,  where  the  question  is  one  of  punishment,  or  not; 
where  no  second  party  has  acquired  any  right  to  have  the 
crime  punished,  unless  it  were  committed  with  criminal  intent, 
(but  only  to  have  it  compensated  for  by  damages  in  a  civil 
suit;)  and  when  the  criminal  intent  is  the  only  moral  justifica¬ 
tion  for  the  punishment,  the  principle  does  not  apply,  and  a  man 
is  bound  to  know  the  lav/  only  as  rvell  as  he  reasonably  may. 
The  criminal  law  requires  neither  impossibilities  nor  extraor¬ 
dinaries  of  any  one.  It  requires  only  thoughtfulness  and  a 
good  conscience.  It  requires  only  that  a  man  fairly  and  prop¬ 
erly  use  the  judgment  he  possesses,  and  the  means  he  has  of 
learning  his  duty.  It  requires  of  him  only  the  same  care  to 
know  his  duty  in  regard  to  the  law,  that  he  is  morally  bound 
to  use  in  other  matters  of  equal  importance.  And  (his  care  it 
does  require  of  him.  Any  ignorance  of  the  law,  therefore,  that 
is  unnecessary,  or  that  arises  from  indifference  or  disregard  of 
one’s  duty,  is  no  excuse.  An  accused  person,  therefore,  may 
be  rightfully  held  responsible  for  such  a  knowledge  of  the 
law  as  is  common  to  men  in  general,  having  no  greater  natu¬ 
ral  capacities  than  himself,  and  no  greater  opportunities  for 
learning  the  law.  And  he  can  rightfully  be  held  to  no  greater 
knowledge  of  the  law  than  this.  To  hold  him  responsible  for 
a  greater  knowledge  of  the  law  than  is  common  to  mankind, 
when  other  things  are  equal,  would  be  gross  injustice  and  cru¬ 
elty.  The  mass  of  mankind  can  give  but  little  of  their  atten¬ 
tion  to  acquiring  a  knowledge  of  the  law.  Their  other  duties 
in  life  forbid  it.  Of  course,  they  cannot  investigate  abstruse 
or  difficult  questions.  All  that  can  rightfully  be  required  of 
each  of  them,  then,  is  that  he  exercise  such  a  candid  and  con¬ 
scientious  judgment  as  it  is  common  for  mankind  generally  to 
exercise  in  such  matters.  If  he  have  done  this,  it  would  be 
monstrous  to  punish  him  criminally  for  his  errors;  errors  not 
of  conscience,  but  only  of  judgment.  It  would  also  be  con¬ 
trary  to  the  first  principles  of  a  free  government  (that  is,  a 
government  formed  by  voluntary  association)  to  punish  men 
in  such  cases,  because  it  would  be  absurd  to  suppose  that  any 
man  would  voluntarily  assist  to  establish  or  support  a  govern- 
16* 


186 


TRIAL  BY  JURY. 


ment  that  would  punish  himself  for  acts  which  he  himself  did 
not  know  to  be  crimes.  But  a  man  may  reasonably  unite 
with  his  fellow-men  to  maintain  a  government  to  punish  those 
acts  which  he  himself  considers  criminal,  and  may  reasonably 
acquiesce  in  his  own  liability  to  be  punished  for  such  acts.  As 
those  are  the  only  grounds  on  which  any  one  can  be  supposed 
to  render  any  voluntary  support  to  a  government,  it  follows 
that  a  government  formed  by  voluntary  association,  and  of 
course  having  no  powers  except  such  as  all  the  associates  have 
consented  that  it  may  have,  can  have  no  power  to  punish  a 
man  for  acts  which  he  did  not  himself  know  to  be  criminal. 

The  safety  of  society,  which  is  the  only  object  of  the  crim¬ 
inal  law,  requires  only  that  those  acts  which  are  understood  by 
mankind  at  large  to  be  intrinsically  criminal ,  should  be  pun¬ 
ished  as  crimes.  The  remaining  few  (if  there  are  any)  may 
safely  be  left  to  go  unpunished.  Nor  does  the  safety  of  society 
require  that  any  individuals,  other  than  those  who  have  suffi¬ 
cient  mental  capacity  to  understand  that  their  acts  are  crim¬ 
inal,  should  be  criminally  punished.  All  others  may  safely  be 
left  to  their  liability,  under  the  civil  law,  to  compensate  for 
their  unintentional  wrongs. 

The  only  real  object  of  this  absurd  and  atrocious  doctrine, 
that £!  ignorance  of  the  law  (that  is,  of  crime)  excuses  no  one,” 
and  that  “  everyone  is  bound  to  know  the  criminal  law,”  (that 
is,  bound  to  know  what  is  a  crime,)  is  to  maintain  an  entirely 
arbitrary  authority  on  the  part  of  the  government,  and  to  deny 
to  the  people  all  right  to  judge  for  themselves  what  their  own 
rights  and  liberties  are.  In  other  words,  the  whole  object  of 
the  doctrine  is  to  deny  to  the  people  themselves  all  right  to 
judge  what  statutes  and  other  acts  of  the  government  are  con¬ 
sistent  or  inconsistent  with  their  own  rights  and  liberties;  and 
thus  to  reduce  the  people  to  the  condition  of  mere  slaves  to  a 
despotic  power,  such  as  the  people  themselves  would  never 
have  voluntarily  established,  and  the  justice  of  whose  laws  the 
people  themselves  cannot  understand. 

Under  the  true  trial  by  jury  all  tyranny  of  this  kind  would 
be  abolished.  A  jury  would  not  only  judge  what  acts  were 
really  criminal,  but  they  would  judge  of  the  mental  capacity 
of  an  accused  person,  and  of  his  opportunities  for  understand- 


THE  CRIMINAL  INTENT. 


187 


ing  the  true  character  of  his  conduct.  In  short,  they  would 
judge  of  his  moral  intent  from  all  the  circumstances  of  the  case, 
and  acquit  him,  if  they  had  any  reasonable  doubt  that  he 
knew  that  he  was  committing  a  crime.* 


*  In  contrast  to  the  doctrines  of  the  text,  it  may  be  proper  to  present  more  distinctly 
the  doctrines  that  are  maintained  by  judges,  and  that  prevail  in  courts  of  justice. 

Of  course,  no  judge,  either  of  the  present  day,  or  perhaps  within  the  last  five  hun¬ 
dred  years,  has  admitted  the  right  of  a  jury  to  judge  of  the  justice  of  a  law,  or  to  hold 
any  law  invalid  for  its  injustice.  Every  judge  asserts  the  power  of  the  government  to 
punish  for  acts  that  are  intrinsically  innocent,  and  which  therefore  involve  or  evince 
no  criminal  intent.  To  accommodate  the  administration  of  law  to  this  principle,  all 
judges,  so  far  as  I  am  aware,  hold  it  to  be  unnecessary  that  an  indictment  should 
charge,  or  that  a  jury  should  find,  that  an  act  was  done  with  a  criminal  intent,  except 
in  those  cases  where  the  act  is  malum  in  se,  —  criminal  in  itself.  In  all  other  cases,  so 
far  as  I  am  aware,  they  hold  it  sufficient  that  the  indictment  charge,  and  consequently 
that  the  jury  find,  simply  that  the  act  was  done  “  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided  ;  ”  in  other  words,  contrary  to  the  orders  of  the  gov¬ 
ernment. 

All  these  doctrines  prevail  universally  among  judges,  and  are,  I  think,  uniformly 
practised  upon  in  courts  of  justice  ;  and  they  plainly  involve  the  most  absolute  despot¬ 
ism  on  the  part  of  the  government. 

But  there  is  still  another  doctrine  that  extensively,  and  perhaps  most  generally,  pre¬ 
vails  in  practice,  although  judges  are  not  agreed  in  regard  to  its  soundness.  It  is  this  : 
that  it  is  not  even  necessary  that  the  jury  should  see  or  know,  fur  themselves,  what  the 
law  is  that  is  charged  to  have  been  violated;  nor  to  see  or  know,  for  themselves,  that  the 
act  charged  was  in  violation  of  any  law  whatever; — but  that  it  is  sufficient  that  they 
be  simply  told  by  the  judge  that  any  act  whatever,  charged  in  an  indictment,  is  in  viola¬ 
tion  of  law,  and  that  they  are  then  bound  blindly  to  receive  the  declaration  as  true,  and 
convict  a  man  accordingly,  if  they  find  that  he  has  done  the  act  charged. 

This  doctrine  is  adopted  by  many  among  the  most  eminent  judges,  and  the  reasons  for 
it  are  thus  given  by  Lord  Mansfield  : 

“  They  (the  jury)  do  not  know,  and  are  not  presumed  to  know,  the  law.  They  are 
not  sworn  to  decide  the  law;*  they  are  not  required  to  do  it.  .  .  The  jury  ought 

not  to  assume  tho  jurisdiction  of  law.  They  do  not  know,  and  are  not  presumed  to 
know,  anything  of  the  matter.  They  do  not  understand  the  language  in  which  it  is 
conceived,  or  the  meaning  of  the  terms.  They  have  no  rule  to  go  by  but  their  pas¬ 
sions  and  wishes.”  —  3  Term  Rep.,  428,  note. 

What  is  this  but  saying  that  the  people,  who  are  supposed  to  be  represented  in  juries, 
and  who  institute  and  support  the  government,  (of  course  for  the  protection  of  their 
own  rights  and  liberties,  as  they  understand  them,  for  plainly  no  other  motive  can  bo 
attributed  to  them,)  are  really  the  slaves  of  a  despotic  power,  whose  arbitrary  com¬ 
mands  even  they  are  not  supposed  competent  to  understand,  but  for  the  transgression 
of  which  they  are  nevertheless  to  be  punished  as  criminals  1 

This  is  plainly  the  sum  of  the  doctrine,  because  the  jury  are  the  peers  (equals)  of  the 
accused,  and  are  therefore  supposed  to  know  the  law  as  well  as  he  does,  and  as  well  as 
it  is  known  by  the  people  at  large.  If  they  (the  jury)  are  not  presumed  to  know  the 

*  This  declaration  of  Mansfield,  that  juries  in  England  “  are  not  sworn  to  decide  the  law  ”  in 
criminal  cases,  is  a  plain  falsehood.  They  are  sworn  to  try  the  whole  case  at  issue  between  the 
king  and  the  prisoner,  and  that  includes  the  law  as  well  as  the  fact.  See  juror’s  oath,  page  88. 


1SS 


TRIAL  BY  JURY. 


law,  neither  the  accused  nor  the  people  at  large  can  be  presumed  to  know  it.  Hence,  it 
follows  that  one  principle  of  the  true  trial  by  jury  is,  that  no  accused  person  shall  be  held 
responsible  for  any  other  or  greater  knowledge  of  the  law  than  is  common  to  his  political 
equals,  who  will  generally  be  men  of  nearly  similar  condition  in  life.  But  the  doctrine 
of  Mansfield  is,  that  the  body  of  the  people,  from  whom  jurors  are  taken,  are  responsible 
to  a  law,  which  it  is  agreed  they  cannot  understand.  What  is  this  but  despotism  1  —  and 
not  merely  despotism,  but  insult  and  oppression  of  the  intensest  kind  1 

This  doctrine  of  Mansfield  is  the  doctrine  of  all  who  deny  the  right  of  juries  to  judge 
of  the  law,  although  all  may  not  choose  to  express  it  in  so  blunt  and  unambiguous 
terms.  But  the  doctrine  evidently  admits  of  no  other  interpretation  or  defence. 


CHAPTER  X. 


MORAL  CONSIDERATIONS  FOR  JURORS. 

The  trial  by  jury  must,  if  possible,  be  construed  to  be  such 
that  a  man  can  rightfully  sit  in  a  jury,  and  unite  with  his  fel¬ 
lows  in  giving  judgment.  But  no  man  can  rightfully  do  this, 
unless  he  hold  in  his  own  hand  alone  a  veto  upon  any  judg¬ 
ment  or  sentence  whatever  to  be  rendered  by  the  jury  against 
a  defendant,  which  veto  he  must  be  permitted  to  use  according 
to  his  own  discretion  and  conscience,  and  not  bound  to  use 
according  to  the  dictation  of  either  legislatures  or  judges. 

The  prevalent  idea,  that  a  juror  may,  at  the  mere  dictation 
of  a  legislature  or  a  judge,  and  without  the  concurrence  of  his 
own  conscience  or  understanding,  declare  a  man  “guilty”  and 
thus  in  effect  license  the  government  to  punish  him ;  and  that 
the  legislature  or  the  judge,  and  not  himself,  has  in  that  case 
all  the  moral  responsibility  for  the  correctness  of  the  principles 
on  which  the  judgment  was  rendered,  is  one  of  the  many  gross 
impostures  by  which  it  could  hardly  have  been  supposed  that 
any  sane  man  could  ever  have  been  deluded,  but  which  gov¬ 
ernments  have  nevertheless  succeeded  in  inducing  the  people 
at  large  to  receive  and  act  upon. 

As  amoral  proposition,  it  is  perfectly  self-evident  that,  unless 
juries  have  all  the  legal  rights  that  have  been  claimed  for  them 
in  the  preceding  chapters,  —  that  is,  the  rights  of  judging  what 
the  law  is,  whether  the  law  be  a  just  one,  what  evidence  is 
admissible,  what  weight  the  evidence  is  entitled  to,  whether 
an  act  were  done  with  a  criminal  intent,  and  the  right  also  to 
limit  the  sentence,  free  of  all  dictation  from  any  quarter,  — 
they  have  no  moral  right  to  sit  in  the  trial  at  all,  and  cannot 
do  so  without  making  themselves  accomplices  in  any  injustice 
that  they  may  have  reason  to  believe  may  result  from  their 


190 


TRIAL  BY  JURY. 


verdict.  It  is  absurd  to  say  that  they  have  no  moral  respon¬ 
sibility  for  the  use  that  may  be  made  of  their  verdict  by  the 
government,  when  they  have  reason  to  suppose  it  will  be  used 
for  purposes  of  injustice. 

It  is,  for  instance,  manifestly  absurd  to  say  that  jurors  have 
no  moral  responsibility  for  the  enforcement  of  an  unjust  law, 
when  they  consent  to  render  a  verdict  of  guilty  for  the  trans¬ 
gression  of  it ;  which  verdict  they  know,  or  have  good  reason 
to  believe,  will  be  used  by  the  government  as  a  justification 
for  inflicting  a  penalty. 

It  is  absurd,  also,  to  say  that  jurors  have  no  moral  responsi¬ 
bility  for  a  punishment  inflicted  upon  a  man  against  late ,  when, 
at  the  dictation  of  a  judge  as  to  what  the  law  is,  they  have 
consented  to  render  a  verdict  against  their  own  opinions  of  the 
law. 

It  is  absurd,  too,  to  say  that  jurors  have  no  moral  responsi¬ 
bility  for  the  conviction  and  punishment  of  an  innocent  man, 
when  they  consent  to  render  a  verdict  against  him  on  the 
strength  of  evidence,  or  laws  of  evidence,  dictated  to  them  by 
the  court,  if  any  evidence  or  laws  of  evidence  have  been 
excluded,  which  they  (the  jurors)  think  ought  to  have  been 
admitted  in  his  defence. 

It  is  absurd  to  say  that  jurors  have  no  moral  responsibility 
for  rendering  a  verdict  of  “ guilty  ”  against  a  man,  for  an  act 
which  he  did  not  know  to  be  a  crime,  and  in  the  commission 
of  which,  therefore,  he  could  have  had  no  criminal  intent,  in 
obedience  to  the  instructions  of  courts  that  “ignorance  of  the 
law  (that  is,  of  crime)  excuses  no  one.” 

It  is  absurd,  also,  to  say  that  jurors  have  no  moral  responsi¬ 
bility  for  any  cruel  or  unreasonable  sentence  that  may  be 
inflicted  even  upon  a  guilty  man,  when  they  consent  to  render 
a  verdict  which  they  have  reason  to  believe  will  be  used  by 
the  government  as  a  justification  for  the  infliction  of  such  sen¬ 
tence. 

The  consequence  is,  that  jurors  must  have  the  whole  case 
in  their  hands,  and  judge  of  law,  evidence,  and  sentence,  or 
they  incur  the  moral  responsibility  of  accomplices  in  any  injus¬ 
tice  which  they  have  reason  to  believe  will  be  done  by  the 
government  on  the  authority  of  their  verdict. 


MORAL  CONSIDERATIONS  FOR  JURORS. 


191 


The  same  principles  apply  to  civil  cases  as  to  criminal.  If 
a  jury  consent,  at  the  dictation  of  the  court,  as  to  either  law  or 
evidence,  to  render  a  verdict,  on  the  strength  of  which  they 
have  reason  to  believe  that  a  man’s  property  will  be  taken 
from  him  and  given  to  another,  against  their  own  notions  of 
justice,  they  make  themselves  morally  responsible  for  the 
wrong. 

Every  man,  therefore,  ought  to  refuse  to  sit  in  a  jury,  and 
to  take  the  oath  of  a  juror,  unless  the  form  of  the  oath  be  such 
as  to  allow  him  to  use  his  own  judgment,  on  every  part  of  the 
case,  free  of  all  dictation  Avhatsoever,  and  to  hold  in  his  own 
hand  a  veto  upon  any  verdict  that  can  be  rendered  against  a 
defendant,  and  any  sentence  that  can  be  inflicted  upon  him, 
even  if  he  be  guilty. 

Of  course,  no  man  can  rightfully  take  an  oath  as  juror,  to 
try  a  case  “  according  to  law,”  (if  by  law  be  meant  anything 
other  than  his  own  ideas  of  justice,)  nor  “according  to  the 
law  and  the  evidence,  as  they  shall  be  given  him.”  Nor  can 
he  rightfully  take  an  oath  even  to  try  a  case  “  according  to  the 
evidence”  because  in  all  cases  he  may  have  good  reason  to 
believe  that  a  party  has  been  unable  to  produce  all  the  evi¬ 
dence  legitimately  entitled  to  be  received.  The  only  oath 
which  it  would  seem  that  a  man  can  rightfully  take  as  juror, 
in  either  a  civil  or  criminal  case,  is,  that  he  “  will  try  the  case 
according  to  his  conscience .”  Of  course,  the  form  may  admit 
of  variation,  but  this  should  be  the  substance.  Such,  we  have 
seen,  were  the  ancient  common  law  oaths. 


CHAPTER  XI. 


AUTHORITY  OF  MAGNA  CARTA. 

• 

Probably  no  political  compact  between  king  and  people  was 
ever  entered  into  in  a  manner  to  settle  more  authoritatively  the 
fundamental  law  of  a  nation,  than  was  Magna  Carta.  Proba¬ 
bly  no  people  were  ever  more  united  and  resolute  in  demand¬ 
ing  from  their  king  a  definite  and  unambiguous  acknowledg¬ 
ment  of  their  rights  and  liberties,  than  were  the  English  at 
that  time.  Probably  no  king  was  ever  more  completely 
stripped  of  all  power  to  maintain  his  throne,  and  at  the  same 
time  resist  the  demands  of  his  people,  than  was  John  on  the 
loth  day  of  June,  1215.  Probably  no  king  every  consented, 
more  deliberately  or  explicitly,  to  hold  his  throne  subject  to 
specific  and  enumerated  limitations  upon  his  power,  than  did 
John  when  he  put  his  seal  to  the  Great  Charter  of  the  Liber¬ 
ties  of  England.  And  if  any  political  compact  between  king 
and  people  was  ever  valid  to  settle  the  liberties  of  the  people, 
or  to  limit  the  power  of  the  crown,  that  compact  is  now  to  be 
found  in  Magna  Carta.  If,  therefore,  the  constitutional  author¬ 
ity  of  Magna  Carta  had  rested  solely  upon  the  compact  of 
John  with  his  people,  that  authority  would  have  been  entitled 
to  stand  forever  as  the  supreme  law  of  the  land,  unless  revoked 
by  the  will  of  the  people  themselves. 

But  the  authority  of  Magna  Carta  does  not  rest  alone  upon 
the  compact  with  John.  When,  in  the  next  year,  (1216,)  his 
son,  Henry  III.,  came  to  the  throne,  the  charter  was  ratified 
by  him,  and  again  in  1217,  and  again  in  1225,  in  substantially 
the  same  form,  and  especially  without  allowing  any  new 
powers,  legislative,  judicial,  or  executive,  to  the  king  or  his 
judges,  and  without  detracting  in  the  least  from  the  powers  of 
the  jury.  And  from  the  latter  date  to  this,  the  charter  has 
remained  unchanged. 


AUTHORITY  OF  MAGNA  CARTA. 


193 


In  the  course  of  two  hundred  years  the  charter  was  con¬ 
firmed  by  Henry  and  his  successors  more  than  thirty  times. 
And  although  they  were  guilty  of  numerous  and  almost  con¬ 
tinual  breaches  of  it,  and  were  constantly  seeking  to  evade  it, 
yet  such  were  the  spirit,  vigilance  and  courage  of  the  nation, 
that  the  kings  held  their  thrones  only  on  the  condition  of  their 
renewed  and  solemn  promises  of  observance.  And  it  was  not 
until  1429,  (as  will  be  more  fully  shown  hereafter,)  when  a 
truce  between  themselves,  and  a  formal  combination  against 
the  mass  of  the  people,  had  been  entered  into,  by  the  king,  the 
nobility,  and  the  “ forty  shilling  freeholders ,”  (a  class  whom 
Mackintosh  designates  as  “  a  few  freeholders  then  accounted 
wealthy  f*)  by  the  exclusion  of  all  others  than  such  freehold¬ 
ers  from  all  voice  in  the  election  of  knights  to  represent  the 
counties  in  the  House  of  Commons,  that  a  repetition  of  these 
confirmations  of  Magna  Carta  ceased  to  be  demanded  and 
obtained.! 

The  terms  and  the  formalities  of  some  of  these  “confirma¬ 
tions”  make  them  worthy  of  insertion  at  length. 

Hume  thus  describes  one  which  took  place  in  the  3Sth  year 
of  Henry  III.  (1253): 

“  But  as  they  (the  barons)  had  experienced  his  (the  king’s) 
frequent  breach  of  promise,  they  required  that  he  should  ratify 
the  Great  Charter  in  a  manner  still  more  authentic  and  solemn 
than  any  which  he  had  hitherto  employed.  All  the  prelates 
and  abbots  were  assembled.  They  held  burning  tapers  in 
their  hands.  The  Great  Charter  was  read  before  them.  They 
denounced  the  sentence  of  excommunication  against  every  one 
who  should  thenceforth  violate  that  fundamental  law.  They 
threw  their  tapers  on  the  ground,  and  exclaimed,  May  the  sold 
of  every  one  who  incurs  this  sentence  so  stink  and  corrupt  in 
hell!  The  king  bore  a  part  in  this  ceremony,  and  subjoined, 
‘So  help  me  God!  I  will  keep  all  these  articles  inviolate,  as  I 
am  a  man,  as  I  am  a  Christian,  as  I  am  a  knight,  and  as  I  am 
a  king  crowned  and  anointed.’” — Hume ,  ch.  12.  See  also 


*  Mackintosh’s  Hist,  of  Eng.,  ch.  3.  45  Lardner’s  Cab.  Cyc.,  354. 

+  “  Forty  shilling  freeholders  ”  were  those  “  people  dwelling  and  resident  in  the  same 
counties,  whereof  every  one  of  them  shall  have  free  land  or  tenement  to  the  value  of 
forty  shillings  by  the  year  at  the  least  above  all  charges.”  By  statute  8  Henry  C,  oh. 
7,  (1429,)  these  freeholders  only  were  allowed  to  vote  for  members  of  Parliament  from 
the  counties. 


17 


194 


TRIAL  BY  JURY. 


Blaclcsf one's  Introd.  to  the  Charters.  Black.  Laic  Tracts, 
Oxford  ed ,  p.  332.  Mackintosh's  Hist,  of  Eng.,  ch.  3. 
Lardner  s  Cab.  Cyc.,  vol.  45,  p.  233-4. 

The  following  is  the  form  of  “the  sentence  of  excommuni¬ 
cation”  referred  to  by  Hume  r 

“  The  Sentence  of  Curse ,  Given  by  the  Bishops,  against 
the  Breakers  of  the  Charters. 

“The  year  of  our  Lord  a  thousand  two  hundred  and  fifty- 
three.  the  third  day  of  May,  in  the  great  Hall  of  the  King  at 
Westminster,  in  the  presence,  and  by  the  assent ,  of  the  Lord 
Henry,  by  the  Grace  of  God  King  of  England,  and  the  Lords 
Richard,  Earl  of  Cornwall,  his  brother,  Roger  (Bigot)  Earl  of 
Norfolk  and  Suffolk,  marshal  of  England,  Humphrey,  Earl 
of  Hereford,  Henry,  Earl  of  Oxford,  John,  Earl  of  Warwick, 
and  other  estates  of  the  Realm  of  England:  We,  Boniface,  by 
the  mercy  of  Cod  Archbishop  of  Canterbury,  Primate  of  all 
England,  F.  of  London,  H.  of  Ely,  S.  of  Worcester,  E.  of 
Lincoln,  W.  of  Norwich,  P.  of  Hereford,  W.  of  Salisbury,  W, 
of  Durham,  R.  of  Exeter,  M.  of  Carlisle,  W.  of  Bath,  E.  of 
Rochester,  T.  of  Saint  David’s,  Bishops,  apparelled  in  Pontif¬ 
icals,  with  tapers  burning,  against  the  breakers  of  the  Church’s 
Liberties,  and  of  the  Liberties  or  free  customs  of  the  Realm  of 
England,  and  especially  of  those  which  are  contained  in  the 
Charter  of  the  Common  Liberties  of  the  Realm,  and  the  Char¬ 
ter  of  the  Forest,  have  solemnly  denounced  the  sentence  of 
Excommunication  in  this  form.  By  the  authority  of  Almighty 
Cod,  the  Father,  the  Son,  and  the  Holy  Ghost,  and  of  the  glo¬ 
rious  Mother  of  Cod.  and  perpetual  Virgin  Mary,  of  the  blessed 
Apostles  Peter  and  Paul,  and  of  all  apostles,  of  the  blessed 
Thomas,  Archbishop  and  Martyr,  and  of  all  martyrs,  of  blessed 
Edward  of  England,  and  of  all  Confessors  and  virgins,  and 
of  all  the  saints  of  heaven:  We  excommunicate,  aecurse,  and 
from  the  thresholds  (liminibus)of  our  Holy  Mother  the  Church, 
We  sequester,  all  those  that  hereafter  willingly  and  maliciously 
deprive  or  spoil  the  Church  of  her  right:  And  all  those  that  by 
any  craft  or  wiliness  do  violate,  break,  diminish,  or  change  the 
Church’s  Liberties,  or  the  ancient  approved  customs  of  the 
Realm,  and  especially  the  Liberties  and  free  Customs  con¬ 
tained  in  the  Charters  of  the  Common  Liberties,  and  of  the 
Forest,  conceded  by  our  Lord  the  King,  to  Archbishops,  Bish¬ 
ops,  and  other  Prelates  of  England;  and  likewise  to  the  Earls,. 
Barons,  Knights,  and  other  Freeholders  of  the  Realm :  And 
all  that  secretly,  or  openly,  by  deed,  word,  or  counsel,  do  make 
statutes,  or  observe  them  being  made ,  and  that  bring  in  Cus¬ 
toms,  or  keep  them  when  they  be  brought  in,  against  the  said 


AUTHORITY  OF  MAGNA  CARTA. 


195 


Liberties,  or  any  of  them,  the  Writers  and  Counsellors  of  said 
statutes,  and  the  Executors  of  them,  and  all  those  that  shall 
presume  to  judge  according  to  them.  All  and  every  which 
persons  before  mentioned,  that  wittingly  shall  commit  any¬ 
thing  of  the  premises,  let  them  well  know  that  they  incur  the 
aforesaid  sentence,  ipso  facto,  (i.  e.,  upon  the  deed  being 
done.)  And  those  that  ignorantly  do  so,  and  be  admonished, 
except  they  reform  themselves  within  fifteen  days  after  the 
time  of  the  admonition,  and  make  full  satisfaction  for  that 
they  have  done,  at  the  will  of  the  ordinary,  shall  be  from  that 
time  forth  included  in  the  same  sentence.  And  with  the  same 
sentence  we  burden  all  those  that  presume  to  perturb  the 
peace  of  our  sovereign  Lord  the  King,  and  of  the  Realm.  To 
the  perpetual  memory  of  which  thing,  We,  the  aforesaid  Pre¬ 
lates,  have  put  our  seals  to  these  presents.”  —  Statutes  of  the 
Realm ,  vol.  1,  p.  G.  Ruff  head's  Statutes ,  vol.  1,  p.  20. 

One  of  the  Confirmations  of  the  Charters,  by  Edward  I., 
was  by  statute,  in  the  25th  year  of  his  reign,  (1297,)  in  the 
following  terms.  The  statute  is  usually  entitled  “  Confirmatio 
Cartarum,"  (Confirmation  of  the  Charters.) 

Ch.  1.  “  Edward,  by  the  Grace  of  God,  King  of  England, 

Lord  of  Ireland,  and  Duke  of  Guyan,  To  all  those  that  these 
presents  shall  hear  or  see,  Greeting.  Know  ye,  that  We,  to 
•the  honor  of  God,  and  of  Holy  Church,  and  to  the  profit  of 
our  Realm,  have  granted,  for  us  and  our  heirs,  that  the  Char¬ 
ter  of  Liberties,  and  the  Charter  of  the  Forest,  which  were 
made  by  common  assent  of  all  the  Realm,  in  the  time  of  King 
Henry  our  Father,  shall  be  kept  in  every  point  without  breach. 
And  we  will  that  the  same  Charters  shall  be  sent  under  our 
seal,  as  well  to  our  justices  of  the  Forest,  as  to  others,  and  to 
all  Sheriffs  of  shires,  and  to  all  our  other  officers,  and  to  all  our 
cities  throughout  the  Realm,  together  with  our  writs,  in  the 
which  it  shall  be  contained,  that  they  cause  the  aforesaid  Char¬ 
ters  to  be  published,  and  to  declare  to  the  people  that  We  have 
confirmed  them  at  all  points;  and  to  our  Justices,  Sheriffs, 
Mayors,  and  other  ministers,  which  under  us  have  the  Laws 
of  our  Land  to  guide,  that  they  allow  the  same  Charters,  in 
all  their  points,  in  pleas  before  them,  and  in  judgment;  that 
is,  to  wit,  the  Great  Charter  as  the  Common  Law,  and  the 
Charter  of  the  Forest  for  the  wealth  of  our  Realm. 

Ch.  2.  “And  we  will  that  if  any  judgment  be  given  from 
henceforth  contrary  to  the  points  of  the  charters  aforesaid  by 
the  justices,  or  by  any  others  our  ministers  that  hold  plea 
before  them,  against  the  points  of  the  Cliarters,  it  shall  be 
undone  and  holdeu  for  naught. 


196 


TRIAL  BY  JURY. 


Ch.  3.  “And  we  will,  that  the  same  Charters  shall  be  sent, 
under  onr  seal,  to  Cathedral  Churches  throughout  our  Realm, 
there  to  remain,  and  shall  be  read  before  the  people  two  times 
jn  the  year. 

Ch.  4.  “And  that  all  Archbishops  and  Bishops  shall  pro¬ 
nounce  the  sentence  of  excommunication  against  all  those  that 
by  word,  deed,  or  counsel,  do  contrary  to  the  foresaid  char¬ 
ters,  or  that  in  any  point  break  or  undo  them.  And  that  the 
said  Curses  be  twice  a  year  denounced  and  published  by  the 
prelates  aforesaid.  And  if  the  same  prelates,  or  any  of  them, 
be  remiss  in  the  denunciation  of  the  said  sentences,  the  Arch¬ 
bishops  of  Canterbury  and  York,  for  the  time  being,  shall 
compel  and  distrain  them  to  make  the  denunciation  in  the 
form  aforesaid.”  —  St.  25  Edward  /.,  (1297.)  Statutes  of  the 
Realm ,  vol.  1,  p.  123. 

It  is  unnecessary  to  repeat  the  terms  of  the  various  confirm¬ 
ations,  most  of  which  were  less  formal  than  those  that  have 
been  given,  though  of  course  equally  authoritative.  Most  of 
them  are  brief,  and  in  the  form  of  a  simple  statute,  or  prom¬ 
ise,  to  the  effect  that  “The  Great  Charter,  and  the  Charter  of 
the  Forest,  shall  be  firmly  kept  and  maintained  in  all  points.”’ 
They  are  to  be  found  printed  with  the  other  statutes  of  the 
realm.  One  of  them,  after  having  “  again  granted,  renewed 
and  confirmed”  the  charters,  requires  as  follows: 

“That  the  Charters  be  delivered  to  every  sheriff  of  England 
under  the  king’s  seal,  to  be  read  four  times  in  the  year  before 
the  people  in  the  full  county,”  (that  is,  at  the  county  court,) 
“  that  is,  to  wit,  the  next  county  (court)  after  the  feast  of  Saint 
Michael,  and  the  next  county  (court)  after  Christmas,  and  at 
the  next  county  (court)  after  Easter,  and  at  the  next  county 
(court)  after  the  feast  of  Saint  John.”  —  28  Edward  /.,  ch.  1, 
(1300.) 

Lingard  says,  “The  Charter  was  ratified  four  times  by 
Henry  III.,  twice  by  Edward  I.,  fifteen  times  by  Edward  III., 
seven  times  by  Richard  II.,  six  times  by  Henry  IV.,  and  once 
by  Henry  V. ;”  making  thirty-five  times  in  all.  —  3  Lingard t 
50,  note,  Philad.  ed. 

Coke  says  Magna  Carta  was  confirmed  thirty-two  times.  — 
Preface  to  2  List. ,  p.  6. 

Lingard  calls  these  “thirty-five  successive  ratifications”  of 
the  charter,  “  a  sufficient  proof  how  much  its  provisions  were 


AUTHORITY  OF  MAGNA  CARTA. 


197 


abhorred  by  the  sovereign,  and  how  highly  they  were  prized 
by  the  nation.”  —  3  Lingcird,  50. 

Mackintosh  says,  “For  almost  five  centuries  (that  is,  until 
1688)  it  (Magna  Carta)  was  appealed  to  as  the  decisive  au¬ 
thority  on  behalf  of  the  people,  though  commonly  so  far  only 
as  the  necessities  of  each  case  demanded.”  —  Mackintosh's 
Hist,  of  Eng.  ch.  3.  45  Lardner's  Cab.  Cyc.,  221. 

Coke,  who  has  labored  so  hard  to  overthrow  the  most  vital 
principles  of  Magna  Carta,  and  who,  therefore,  ought  to  be  con¬ 
sidered  good  authority  when  he  speaks  in  its  favor,*  says  : 

“It  is  called  Magna  Carta,  not  that  it  is  great  in  quantity, 
for  there  be  many  voluminous  charters  commonly  passed,  spec¬ 
ially  in  these  later  times,  longer  than  this  is;  nor  compara¬ 
tively  in  respect  that  it  is  greater  than  Charta  de  Foresta,  but 
in  respect  of  the  great  importance  and  weightiness  of  the  mat¬ 
ter,  as  hereafter  shall  appear;  and  likewise  for  the  same  cause 
Charta  de  Foresta ;  and  both  of  them  are  called  Magnce  Char¬ 
ta}  Liber tatum  Anglice,  (The  Great  Charters  of  the  Liberties 
of  England.)  .  . 

“  And  it  is  also  called  Charta  Libertalvm  regni,  (Charter 
of  the  Liberties  of  the  kingdom;)  and  upon  great  reason  it  is 
so  called  of  the  effect,  quialiberos  facit,  (because  it  makes  men 
free.)  Sometime  for  the  same  cause  (it  is  called)  communis 
libertas,  (common  liberty,)  and  le  chartre  des  franchises ,  (the 
charter  of  franchises.)  .  . 

“  It  was  for  the  most  part  declaratory  of  the  principal 
grounds  of  the  fundamental  laws  of  England,  and  for  the  res¬ 
idue  it  is  additional  to  supply  some  defects  of  the  common 
law.  .  . 

“Also,  by  the  said  act  of  25  Edward  I.,  (called  Confirmatio 
Chartarum,)  it  is  adjudged  in  parliament  that  the  Great  Char¬ 
ter  and  the  Charter  of  the  Forest  shall  be  taken  as  the  common 
law.  .  . 

“  They  (Magna  Carta  and  Carta  de  Foresta)  were,  for  the 
most  part,  but  declarations  of  the  ancient  common  laws  of 
England,  to  the  observation  and  keeping  whereof,  the  king 
was  bound  and  sworn.  .  . 

“After  the  making  of  Magna  Charta,  and  Charta  de  For¬ 
esta,  divers  learned  men  in  the  laws,  that  1  may  use  the  words 
of  the  record,  kept  schools  of  the  law  in  the  city  of  London, 
and  taught  such  as  resorted  to  them  the  laws  of  the  realm, 


*  He  probably  speaks  in  its  favor  only  to  blind  the  eyes  of  the  people  to  the  frauds 
he  has  attempted  upon  its  true  meaning. 

17* 


198 


TRIAL  BY  JURY. 


taking  their  foundation  of  Magna  Charta  and  Charta  de  Foi 
esta. 

•“And  the  said  two  charters  have  been  confirmed,  estab¬ 
lished,  and  commanded  to  be  put  in  execution  by  thirty-two 
several  acts  of  parliament  in  all. 

“  This  appeareth  partly  by  that  which  hath  been  said,  for 
that  it  hath  so  often  been  confirmed  by  the  wise  providence  of 
so  many  acts  of  parliament. 

“And  albeit  judgments  in  the  king’s  courts  are  of  high 
regard  in  law,  and  jvdicia  (judgments)  are  accounted  as  juris- 
dicta ,  (the  speech  of  the  law  itself,)  yet  it  is  provided  by  act 
of  parliament,  that  if  any  judgment  be  given  contrary  to  any 
of  the  points  of  the  Great  Charter  and  Charta  de  Foresta,  by 
the  justices,  or  by  any  other  of  the  king’s  ministers,  &c.,  it 
shall  be  undone,  and  holden  for  naught. 

“And  that  both  the  said  charters  shall  be  sent  under  the 
great  seal  to  all  cathedral  churches  throughout  the  realm,  there 
to  remain,  and  shall  be  read  to  the  people  twice  every  year. 

“The  highest  and  most  binding  laws  are  the  statutes  which 
are  established  by  parliament;  and  by  authority  of  that  high¬ 
est  court  it  is  enacted  (only  to  show  their  tender  care  of  Magna 
Carta  and  Carta  de  Foresta)  that  if  any  statute  be  made  con¬ 
trary  to  the  Great  Charter,  or  the  Charter  of  the  Forest,  that 
shall  be  holden  for  none ;  by  which  words  all  former  statutes 
made  against  either  of  those  charters  are  now  repealed  ;  and 
the  nobles  and  great  officers  were  to  be  sworn  to  the  observa¬ 
tion  of  Magna  Charta  and  Charta  de  Foresta. 

“ Magna  fu.it  quondam  magnai  reverentla  charta .”  (Great 
was  formerly  the  reverence  for  Magna  Carta.)  —  Coke's 
Proem  to  2  Inst.,  p.  1  to  7. 

Coke  also  says,  “  All  pretence  of  prerogative  against  Magna 
Charta  is  taken  away.” — 2  Inst.,  36. 

He  also  says,  “That  after  this  parliament  (52  Henry  III., 
in  1267)  neither  Magna  Carta  nor  Carta  de  Foresta  was  ever 
attempted  to  be  impugned  or  questioned.” — 2  Inst.,  102.* 


*  It  will  be  noticed  that  Coke  calls  these  confirmations  of  the  charter  “  acts  of  par¬ 
liament,”  instead  of  acts  of  the  king  alone.  This  needs  explanation. 

It  was  one  of  Coke’s  ridiculous  pretences,  that  laws  anciently  enacted  by  the  king,  at 
the  request,  or  with  the  consent,  or  by  the  advice,  of  his  parliament,  was  “  an  act  of  par¬ 
liament,”  instead  of  the  act  of  the  king.  And  in  the  extracts  cited,  he  carries  this 
idea  so  far  as  to  pretend  that  the  various  confirmations  of  the  Great  Charter  were 
“  acts  of  parliament,”  instead  of  the  acts  of  the  kings.  He  might  as  well  have  pre¬ 
tended  that  the  original  grant  of  the  Charter  was  an  “act  of  parliament  ;”  because  it 
was  not  only  granted  at  the  request,  and  with  the  consent,  and  by  the  advice,  but  on 
the  compulsion  even,  of  those  who  commonly  constituted  his  parliaments.  Yet  this  did 


AUTHORITY  OF  MAGNA  CARTA. 


199 


To  give  all  the  evidence  of  the  authority  of  Magna  Carta,  it 
would  be  necessary  to  give  the  constitutional  history  of  England 
since  the  yearl215.  This  history  would  show  that  Magna  Carta, 
although  continually  violated  and  evaded,  was  still  acknowl- 


not  make  the  grant  of  the  charter  “  an  act  of  parliament.”  It  was  simply  an  act  of  the 
king. 

The  object  of  Coke,  in  this  pretence,  was  to  furnish  some  color  for  the  palpable  false¬ 
hood  that  the  legislative  authority,  which  parliament  was  trying  to  assume  in  his  own 
day,  and  which  it  finally  succeeded  in  obtaining,  had  a  precedent  in  the  ancient  consti¬ 
tution  of  the  kingdom. 

There  would  be  as  much  reason  in  saying  that,  because  the  ancient  kings  were  in  the 
habit  of  passing  laws  in  special  answer  to  the  petitions  of  their  subjects,  therefore  those 
petitioners  were  a  part  of  the  legislative  power  of  the  kingdom. 

One  great  objection  to  this  argument  of  Coke,  for  the  legislative  authority  of  the 
ancient  parliaments,  is  that  a  very  large  —  probably  much  the  larger  —  number  of  leg¬ 
islative  acts  were  done  without  the  advice,  consent,  request,  or  even  presence,  of  a  par¬ 
liament.  Not  only  were  many  formal  statutes  passed  without  any  mention  of  the 
consent  or  advice  of  parliament,  but  a  simple  order  of  the  king  in  council,  or  a  simple 
proclamation,  writ,  or  letter  under  seal,  issued  by  his  command,  had  the  same  force  as 
what  Coke  calls  “an  act  of  parliament.”  And  this  practice  continued,  to  a  considera¬ 
ble  extent  at  least,  down  to  Coke’s  own  time. 

The  kings  were  always  in  the  habit  of  consulting  their  parliaments,  more  or  less,  in 
regard  to  matters  of  legislation,  —  not  because  their  consent  was  constitutionally  nec¬ 
essary,  but  in  order  to  make  influence  in  favor  of  their  laws,  and  thus  induce  the  peo¬ 
ple  to  observe  them,  and  the  juries  to  enforce  them. 

The  general  duties  of  the  ancient  parliaments  were  not  legislative,  but  judicial,  as 
will  be  shown  more  fully  hereafter.  The  people  were  not  represented  in  the  parliaments 
at  the  time  of  Magna  Carta,  but  only  the  archbishops,  bishops,  earls,  barons,  and 
knights;  so  that  little  or  nothing  would  have  been  gained  for  liberty  by  Coke’s  idea 
that  parliament  had  a  legislative  power.  He  would  only  have  substituted  an  aristoc¬ 
racy  for  a  king.  Even  after  the  Commons  were  represented  in  parliament,  they  for 
some  centuries  appeared  only  as  petitioners,  except  in  the  matter  of  taxation,  when  their 
consent  was  asked.  And  almost  the  only  source  of  their  influence  on  legislation  was 
this  :  that  they  would  sometimes  refuse  their  consent  to  the  taxation,  unless  the  king 
would  pass  such  laws  as  they  petitioned  for;  or,  as  would  seem  to  have  been  much 
more  frequently  the  case,  unless  he  would  abolish  such  laws  and  practices  as  they 
remonstrated  against. 

The  influence  or  power  of  parliament,  and  especially  of  the  Commons,  in  the  general 
legislation  of  the  country,  was  a  thing  of  slow  growth,  having  its  origin  in  a  device  of 
the  king  to  get  money  contrary  to  law,  (as  will  be  seen  in  the  next  volume,)  and  not  at 
all  a  part  of  the  constitution  of  the  kingdom,  nor  having  its  foundation  in  the  consent 
of  the  people.  The  power,  as  at  present  exercised,  was  not  fully  established  until  1688, 
(near  five  hundred  years  after  Magna  Carta,)  when  the  House  of  Commons  (falsely  so 
called)  had  acquired  such  influence  as  the  representative,  not  of  the  people,  but  of  the 
wealth,  of  the  nation,  that  they  compelled  the  king  to  discard  the  oath  fixed  by  the 
constitution  of  the  kingdom;  (which  oath  has  been  already  given  in  a  former  chapter,* 
and  was,  in  substance,  to  preserve  and  execute  the  Common  Law,  the  Law  of  the  Land, 


*  See  page  101. 


200 


TRIAL  BY  JURY. 


edged  as  law  by  the  government,  and  was  held  up  by  the  peo¬ 
ple  as  the  great  standard  and  proof  of  their  rights  and  liber- 


—  or,  in  tho  words  of  the  oath,  “  the  just  laws  and  customs  which  the  common  people  had 
chosen;”)  and  to  swear  that  he  would  “  govern  the  people  of  this  kingdom  of  England, 
and  the  dominions  thereto  belonging,  according  to  the  statutes  in  parliament  agreed  on, 
and  tho  laws  and  customs  of  the  same.”* 

The  passage  and  enforcement  of  this  statute,  and  the  assumption  of  this  oath  by  the 
king,  wero  plain  violations  of  the  English  constitution,  inasmuch  as  they  abolished,  so 
far  as  such  an  oath  could  abolish,  the  legislative  power  of  the  king,  and  also  “  those 
just  laws  and  customs  which  the  common  people  (through  their  juries)  had  chosen,” 
and  substituted  the  will  of  parliament  in  their  stead. 

Coke  was  a  great  advocate  for  the  legislative  power  of  parliament,  as  a  means  of 
restraining  the  power  of  the  king.  As  he  denied  all  power  to  juries  to  decide  upon  the 
obligation  of  laws,  and  as  he  held  that  the  legislative  power  was  “  so  transcendent  and 
absolute  as  {that)  it  cannot  be  confined,  either  for  causes  or  persons,  within  any  bounds ,”  j 
he  was  perhaps  honest  in  holding  that  it  was  safer  to  trust  this  terrific  power  in  the 
hands  of  parliament,  than  in  the  hands  of  the  king.  His  error  consisted  in  holding 
that  either  the  king  or  parliament  had  any  such  power,  or  that  they  had  any  power  at 
all  to  pass  laws  that  should  be  binding  upon  a  jury. 

These  declarations  of  Coke,  that  the  charter  was  confirmed  by  thirty-two  “  acts  of 
parliament,”  have  a  mischievous  bearing  in  another  respect.  They  tend  to  weaken  the 
authority  of  the  charter,  by  conveying  the  impression  that  the  charter  itself  might  be 
abolished  by  “  act  of  parliament.”  Coke  himself  admits  that  it  could  not  be  revoked 
or  rescinded  by  the  king;  for  he  says,  “  All  pretence  of  prerogative  against  Magna 
Carta  is  taken  away.”  (2  Inst.,  36.) 

He  knew  perfectly  well,  and  the  whole  English  nation  knew,  that  the  king  could  not 
lawfully  infringe  Magna  Carta.  Magna  Carta,  therefore,  made  it  impossible  that  abso¬ 
lute  power  could  ever  be  practically  established  in  England,  in  the  hands  of  the  king. 
Hence,  as  Coke  was  an  advocate  for  absolute  power,  —  that  is,  for  a  legislative  power 
“  so  transcendent  and  absolute  as  (that)  it  cannot  be  confined,  either  for  causes  or  per¬ 
sons,  within  any  bounds,”  —  there  was  no  alternative  for  him  but  to  vest  this  absolute 
power  in  parliament.  Had  he  not  vested  it  in  parliament,  he  would  have  been  obliged 
to  abjure  it  altogether,  and  to  confess  that  the  people,  through  their  juries,  had  the  right 
to  judge  of  the  obligation  of  all  legislation  whatsoever;  in  other  words,  that  they  had 
the  right  to  confine  the  government  within  the  limits  of  “  those  just  laws  and  customs 
which  the  common  people  (acting  as  jurors)  had  chosen.”  True  to  his  instincts,  as  a 
judge,  and  as  a  tyrant,  he  assumed  that  this  absolute  power  was  vested  in  the  hands  of 
parliament. 

But  the  truth  was  that,  as  by  the  English  constitution  parliament  had  no  authority 
at  all  for  general  legislation,  it  could  no  more  confirm,  than  it  could  abolish,  Magna 
Carta. 

These  thirty-two  confirmations  of  Magna  Carta,  which  Coke  speaks  of  as  “  acts  of 
parliament,”  were  merely  acts  of  the  king.  The  parliaments,  indeed,  by  refusing  to 
grant  him  money,  except  on  that  condition,  and  otherwise,  had  contributed  to  oblige 
him  to  make  the  confirmations;  just  as  they  had  helped  to  oblige  him  by  arms  to  grant 
the  charter  in  the  first  place.  But  the  confirmations  themselves  were  nevertheless  con¬ 
stitutionally,  as  well  as  formally,  the  acts  of  the  king  alone. 


*St.  1  William  and  Mary ,  ch.  6,  (1688.) 


1 4  Inst.,  36. 


AUTHORITY  OF  MAGNA  CARTA. 


201 


ties.  It  would  show  also  that  the  judicial  tribunals,  whenever 
it  suited  their  purposes  to  do  so,  were  in  the  habit  of  referring 
to  Magna  Carta  as  authority,  in  the  same  manner,  and  with 
the  same  real  or  pretended  veneration,  with  which  American 
courts  now  refer  to  the  constitution  of  the  United  States,  or 
the  constitutions  of  the  states.  And,  what  is  equally  to  the 
point,  it  would  show  that  these  same  tribunals,  the  mere  tools 
of  kings  and  parliaments,  would  resort  to  the  same  artifices  of 
assumption,  precedent,  construction,  and  false  interpretation,  to 
evade  the  requirements  of  Magna  Carta,  and  to  emasculate  it 
of  all  its  power  for  the  preservation  of  liberty,  that  are  resorted 
to  by  American  courts  to  accomplish  the  same  work  on  our 
American  constitutions. 

1  take  it  for  granted,  therefore,  that  if  the  authority  of 
Magna  Carta  had  rested  simply  upon  its  character  as  a  com¬ 
pact  between  the  king  and  the  people,  it  would  have  been  for¬ 
ever  binding  upon  the  king,  (that  is,  upon  the  government,  for 
the  king  was  the  government,)  in  his  legislative,  judicial,  and 
executive  character;  and  that  there  was  no  constitutional  pos¬ 
sibility  of  his  escaping  from  its  restraints,  unless  the  people 
themselves  should  freely  discharge  him  from  them. 

But  the  authority  of  Magna  Carta  does  not  rest,  either 
wholly  or  mainly,  upon  its  character  as  a  compact.  For  cen¬ 
turies  before  the  charter  was  granted,  its  main  principles  con¬ 
stituted  “the  Law  of  the  Land,”  —  the  fundamental  and 
constitutional  law  of  the  realm,  which  the  kings  were  sworn 
to  maintain.  And  the  principal  benefit  of  the  charter  was, 
that  it  contained  a  written  description  and  acknowledgment,  by 
the  king  himself,  of  what  the  constitutional  law  of  the  king¬ 
dom  was,  which  his  coronation  oath  bound  him  to  observe. 
Previous  to  Magna  Carta,  this  constitutional  law  rested  mainly 
in  precedents,  customs,  and  the  memories  of  the  people.  And 
if  the  king  could  but  make  one  innovation  upon  this  law, 
without  arousing  resistance,  and  being  compelled  to  retreat 
from  his  usurpation,  he  would  cite  that  innovation  as  a  prece¬ 
dent  for  another  act  of  the  same  kind;  next,  assert  a  custom; 
and,  finally,  raise  a  controversy  as  to  what  the  Law  of  the 
Land  really  was.  The  great  object  of  the  barons  and  people, 
in  demanding  from  the  king  a  written  description  and  ac- 


202 


TRIAL  BY  JURY. 


knowledgment  of  the  Law  of  the  Land,  was  to  put  an  end  to 
all  disputes  of  this  kind,  and  to  put  it  out  of  the  power  of  the 
king  to  plead  any  misunderstanding  of  the  constitutional  law 
of  the  kingdom.  And  the  charter,  no  doubt,  accomplished  very 
much  in  this  way.  After  Magna  Carta,  it  required  much  more 
audacity,  cunning,  or  strength,  on  the  part  of  the  king,  than  it 
had  before,  to  invade  the  people’s  liberties  with  impunity. 
Still,  Magna  Carta,  like  all  other  written  constitutions,  proved 
inadequate  to  the  full  accomplishment  of  its  purpose ;  for  when 
did  a  parchment  ever  have  power  adequately  to  restrain  a  gov¬ 
ernment,  that  had  either  cunning  to  evade  its  requirements,  or 
strength  to  overcome  those  who  attempted  its  defence?  The 
work  of  usurpation,  therefore,  though  seriously  checked,  still 
went  on,  to  a  great  extent,  after  Magna  Carta.  Innovations 
upon  the  Law  of  the  Land  are  still  made  by  the  government. 
One  innovation  was  cited  as  a  precedent.;  precedents  made 
customs ;  and  customs  became  laws,  so  far  as  practice  was 
concerned ;  until  the  government,  composed  of  the  king,  the 
high  functionaries  of  the  church,  the  nobility,  a  House  of  Com¬ 
mons  representing  the  “forty  shilling  freeholders,”  and  a 
dependent  and  servile  judiciary,  all  acting  in  conspiracy 
against  the  mass  of  the  people,  became  practically  absolute, 
as  it  is  at  this  day. 

As  proof  that  Magna  Carta  embraced  little  else  than  what 
•was  previously  recognized  as  the  common  law,  or  Law  of  the 
Land,  I  repeat  some  authorities  that  have  been  already  cited. 

Crabbe  says,  “  It  is  admitted  on  all  hands  that  it  (Magna 
Carta)  contains  nothing  but  what  was  confirmatory  of  the 
common  law  and  the  ancient  usages  of  the  realm;  and  is, 
properly  speaking,  only  an  enlargement  of  the  charter  of 
Henry  I.  and  his  successors.”  —  Crabbe’ s  Hist,  of  the  Eng. 
Law ,  p.  127. 

Blackstone  says,  “It  is  agreed  by  all  our  historians  that  the 
Great  Charter  of  King  John  was,  for  the  most  part,  compiled 
from  the  ancient  customs  of  the  realm,  or  the  laws  of  Edward 
the  Confessor;  by  which  they  mean  the  old  common  law 
which  was  established  under  our  Saxon  princes.” — Black- 
stone’s  In  trod,  to  the  Charters.  See  Blackstone’ s  Load  Tracts , 
Oxford  ed.,  p.  289. 

Coke  says,  “  The  common  law  is  the  most  general  and  an- 


AUTHORITY  OF  MAGNA  CARTA. 


203 


cient  law  of  the  realm.  .  .  The  common  law  appeareth  in 

the  statute  of  Magna  Carta ,  and  other  ancient  statutes,  (which 
for  the  most  part  are  affirmations  of  the  common  law,)  in  the 
original  writs,  in  judicial  records,  and  in  our  books  of  terms 
and  years.”  —  1  Inst.,  115  b. 

Coke  also  says,  “It  (Magna  Carta)  was  for  the  most  part 
declaratory  of  the  principal  grounds  of  the  fundamental  laws 
of  England,  and  for  the  residue  it  was  additional  to  supply 
some  defects  of  the  common  law.  .  .  They  (Magna  Carta 

and  Carta  de  Foresta)  were,  for  the  most  part,  but  declara¬ 
tions  of  the  ancient  common  laws  of  England,  to  the  observation 
and  keeping  whereof  the  king  was  bound  and  sworn.1'  —  Pref¬ 
ace  to  2  Inst. ,  p.  3  and  5. 

Hume  says,  “  We  may  now,  from  the  tenor  of  this  charter, 
(Magna  Carta,)  conjecture  what  those  laws  were  of  King 
Edward,  (the  Confessor,)  which  the  English  nation  during 
so  many  generations  still  desired,  with  such  an  obstinate  per¬ 
severance,  to  have  recalled  and  established.  They  were 
chiefly  these  latter  articles  of  Magna  Carta;  and  the  barons 
who,  at  the  beginning  of  these  commotions,  demanded  the 
revival  of  the  Saxon  laws,  undoubtedly  thought  that  they  had 
sufficiently  satisfied  the  people,  by  procuring  them  this  conces¬ 
sion,  which  comprehended  the  principal  objects  to  which  they 
had  so  long  aspired.” — Hume ,  ch.  11. 

Edward  the  First  confessed  that  the  Great  Charter  was  sub¬ 
stantially  identical  with  the  common  law,  as  far  as  it  went, 
when  he  commanded  his  justices  to  allow  “the  Great  Charter 
as  the  Common  Law,”  “  in  pleas  before  them,  and  in  judg¬ 
ment,”  as  has  been  already  cited  in  this  chapter. — 2 5  Edward 
I.,  ch.  1,  (1297.) 

In  conclusion  of  this  chapter,  it  may  be  safely  asserted  that 
the  veneration,  attachment,  and  pride,  which  the  English  na¬ 
tion,  for  more  than  six  centuries,  have  felt  towards  Magna 
Carta,  are  in  their  nature  among  the  most  irrefragable  of  all 
proofs  that  it  was  the  fundamental  law  of  the  land,  and  con¬ 
stitutionally  binding  upon  the  government;  for,  otherwise,  it 
would  have  been,  in  their  eyes,  an  unimportant  and  worthless 
thing.  What  those  sentiments  were  I  will  use  the  words  of 
others  to  describe,  —  the  words,  too,  of  men,  who,  like  all  mod¬ 
ern  authors  who  have  written  on  the  same  topic,  had  utterly 
inadequate  ideas  of  the  true  character  of  the  instrument  on 
which  they  lavished  their  eulogiums. 


204 


TRIAL  BY  JURY. 


Hume,  speaking  of  the  Great  Charter  and  the  Charter  of  the 
Forest,  as  they  were  confirmed  by  Henry  III.,  in  1217,  says: 

“  Thus  these  famous  charters  were  brought  nearly  to  the 
shape  in  which  they  have  ever  since  stood;  and  they  were, 
during  many  generations,  the  peculiar  favorites  of  the  English 
nation,  and  esteemed  the  most  sacred  rampart  to  national  lib¬ 
erty  and  independence.  As  they  secured  the  rights  of  all 
orders  of  men,  they  were  anxiously  defended  by  all,  and  be¬ 
came  the  basis,  in  a  manner,  of  the  English  monarchy,  and  a 
kind  of  original  contract,  which  both  limited  the  authority  of 
the  king  and  ensured  the  conditional  allegiance  of  his  subjects. 
Though  often  violated,  they  were  still  claimed  by  the  nobility 
and  people;  and,  as  no  precedents  were  supposed  valid  that 
infringed  them,  they  rather  acquired  than  lost  authority,  from 
the  frequent  attempts  made  against  them  in  several  ages,  by 
regal  and  arbitrary  power.”  —  Hume ,  ch.  12. 

Mackintosh  says,  “It  was  understood  by  the  simplest  of  the 
unlettered  age  for  whom  it  was  intended.  It  was  remembered 
by  them.  .  .  For  almost  five  centuries  it  was  appealed  to 

as  the  decisive  authority  on  behalf  of  the  people.  .  .  To 

have  produced  it,  to  have  preserved  it,  to  have  matured  it, 
constitute  the  immortal  claim  of  England  on  the  esteem  of 
mankind.  Her  Bacons  and  Shakspeares,  her  Miltons  and 
Newtons,  with  all  the  truth  which  they  have  revealed,  and 
all  the  generous  virtues  which  they  have  inspired,  are  of  infe¬ 
rior  value  when  compared  with  the  subjection  of  men  and 
their  rulers  to  the  principles  of  justice ;  if,  indeed,  it  be  not 
more  true  that  these  mighty  spirits  could  not  have  been  formed 
except  under  equal  laws,  nor  roused  to  full  activity  without 
the  influence  of  that  spirit  which  the  Great  Charter  breathed 
over  their  forefathers.”  —  Mackintosh's  Hist,  of  Eng.,  ch.  3.* 

Of  the  Great  Charter,  the  trial  by  jury  is  the  vital  part,  and 
the  only  part  that  places  the  liberties  of  the  people  in  their 
own  keeping.  Of  this  Blackstone  says : 

“  The  trial  by  jury,  or  the  country,  jier  patriam ,  is  also  that 
trial  by  the  peers  of  every  Englishman,  which,  as  the  grand 
bulwark  of  his  liberties,  is  secured  to  him  by  the  Great  Char¬ 
ter  ;  nullus  liber  homo  capiatur ,  vel  imprisonetur,  aid  exuletur , 
ant  aliquo  modo  destruatur,  nisi  per  legale  judicium  parium 
suorum ,  vel  per  legem  terrae.  .  . 

The  liberties  of  England  cannot  but  subsist  so  long  as  this 
palladium  remains  sacred  and  inviolate,  not  only  from  all 


*  Under  the  head  of  “  John.” 


AUTHORITY  OF  MAGNA  CARTA. 


205 


open  attacks,  which  none  will  be  so  hardy  as  to  make,  but 
also  from  all  secret  machinations  which  may  sap  and  under¬ 
mine  it.”  * 

“  The  trial  by  jury  ever  has  been,  and  I  trust  ever  will  be, 
looked  upon  as  the  glory  of  the  English  law.  .  .  It  is  the 

most  transcendent  privilege  which  any  subject  can  enjoy  or 
wish  for,  that  he  cannot  be  affected  in  his  property,  his  lib¬ 
erty,  or  his  person,  but  by  the  unanimous  consent  of  twelve  of 
his  neighbors  and  equals.”  f 

Hume  calls  the  trial  by  jury  “  An  institution  admirable  in 
itself,  and  the  best  calculated  for  the  preservation  of  liberty 
and  the  administration  of  justice,  that  ever  was  devised  by  the 
wit  of  man.”  | 

An  old  book,  called  “  English  Liberties,”  says: 

“  English  Parliaments  have  all  along  been  most  zealous  for 
preserving  this  great  Jewel  of  Liberty,  trials  by  juries  having 
no  less  than  fifty-eight  several  times,  since  the  Norman  Con¬ 
quest,  been  established  and  confirmed  by  the  legislative  power, 
no  one  privilege  besides  having  been  ever  so  often  remembered 
in  parliament.”  § 


*  4  Blackstone,  349-50.  f  3  Blackstone,  379.  J  Hume,  ell.  2. 

§  Page  203,  5th  edition,  1721. 


18 


CHAPTER  XII. 


LIMITATIONS  IMPOSED  UPON  THE  MAJORITY  BY  THE  TRIAL  BY 

JURY. 

The  principal  objection,  that  will  be  made  to  the  doctrine  of 
this  essay,  is,  that  under  it,  a  jury  would,  paralyze  the  power 
of  the  majority,  and  veto  all  legislation  that  was  not  in 
accordance  with  the  will  of  the  whole,  or  nearly  the  whole, 
people. 

The  answer  to  this  objection  is,  that  the  limitation,  which 
would  be  thus  imposed  upon  the  legislative  power,  (whether 
that  power  be  vested  in  the  majority,  or  minority,  of  the  peo¬ 
ple,)  is  the  crowning  merit  of  the  trial  by  jury.  It  has  other 
merits;  but,  though  important  in  themselves,  they  are  utterly 
insignificant  and  worthless  in  comparison  with  this. 

It  is  this  power  of  vetoing  all  partial  and  oppressive  legis¬ 
lation,  and  of  restricting  the  government  to  the  maintenance 
of  such  laws  as  the  whole ,  or  substantially  the  whole,  people 
are  agreed  in,  that  makes  the  trial  by  jury  “  the  palladium  of 
liberty.”  Without  this  power  it  would  never  have  deserved 
that  name. 

The  will,  or  the  pretended  will,  of  the  majority,  is  the  last 
lurking  place  of  tyranny  at  the  present  day.  The  dogma,  that 
certain  individuals  and  families  have  a  divine  appointment  to 
govern  the  rest  of  mankind,  is  fast  giving  place  to  the  one  that 
the  larger  number  have  a  right  to  govern  the  smaller;  a 
dogma,  which  may,  or  may  not,  be  less  oppressive  in  its  prac¬ 
tical  operation,  but  which  certainly  is  no  less  false  or  tyranni¬ 
cal  in  principle,  than  the  one  it  is  so  rapidly  supplanting. 
Obviously  there  is  nothing  in  the  nature  of  majorities,  that 
insures  justice  at  their  hands.  They  have  the  same  passions 
as  minorities,  and  they  have  no  qualities  whatever  that  should 
be  expected  to  prevent  them  from  practising  the  same  tyranny 


LIMITATIONS  UPON  THE  MAJORITY. 


207 


as  minorities,  if  they  think  it  will  be  for  their  interest  to 
do  so. 

There  is  no  particle  of  truth  in  the  notion  that  the  majority 
have  a  right  to  rule,  or  to  exercise  arbitrary  power  over,  the 
minority,  simply  because  the  former  are  more  numerous  than 
the  latter.  Two  men  have  no  more  natural  right  to  rule  one, 
than  one  has  to  rule  two.  Any  single  man,  or  any  body  of 
men,  many  or  few,  have  a  natural  right  to  maintain  justice 
for  themselves,  and  for  any  others  who  may  need  their  assist¬ 
ance,  against  the  injustice  of  any  and  all  other  men,  without 
regard  to  their  numbers;  and  majorities  have  no  right  to  do 
any  more  than  this.  The  relative  numbers  of  the  opposing 
parties  have  nothing  to  do  with  the  question  of  right.  And 
no  more  tyrannical  principle  v/as  ever  avovyed,  than  that  the 
will  of  the  majority  ought  to  have  the  force  of  law,  without 
regard  to  its  justice;  or,  what  is  the  same  thing,  that  the  will 
of  the  majority  ought  always  to  be  presumed  to  be  in  accord¬ 
ance  with  justice.  Such  a  doctrine  is  only  another  form  of 
the  doctrine  that  might  makes  right. 

When  two  men  meet  one  upon  the  highway,  or  in  the  wil¬ 
derness,  have  they  a  right  to  dispose  of  his  life,  liberty,  or 
property  at  their  pleasure,  simply  because  they  are  the  more 
numerous  party?  Or  is  he  bound  to  submit  to  lose  his  life, 
liberty,  or  property,  if  they  demand  it,  merely  because  he  is 
the  less  numerous  party?  Or,  because  they  are  more  numer¬ 
ous  than  he,  is  he  bound  to  presume  that  they  are  governed 
only  by  superior  wisdom,  and  the  principles  of  justice,  and  by 
cio  selfish  passion  that  can  lead  them  to  do  him  a  wrong? 
Yet  this  is  tlje  principle,  which  it  is  claimed  should  govern 
men  in  all  their  civil  relations  to  each  other.  Mankind  fall  in 
company  with  each  other  on  the  highway  or  in  the  wilderness 
of  life,  and  it  is  claimed  that  the  more  numerous  party,  simply 
by  virtue  of  their  superior  numbers,  have  the  right  arbitrarily 
to  dispose  of  the  life,  liberty,  and  property  of  the  minority;  and 
that  the  minority  are  bound,  by  reason  of  their  inferior  num¬ 
bers,  to  practise  abject  submission,  and  consent  to  hold  their 
natural  rights, —  any,  all,  or  none,  as  the  case  may  be, —  at 
the  mere  will  and  pleasure  of  the  majority;  as  if  all  a  man’s 
aiatural  rights  expired,  or  were  suspended  by  the  operation  of 


208 


TRIAL  BY  JURY. 


a  paramount  law,  the  moment  he  came  into  the  presence  of 
superior  numbers. 

If  such  be  the  true  nature  of  the  relations  men  hold  to  each 
other  in  this  world,  it  puts  an  end  to  all  such  things  as  crimes, 
unless  they  be  perpetrated  upon  those  who  are  equal  or  supe¬ 
rior,  in  number,  to  the  actors.  All  acts  committed  against 
persons  inferior  in  number  to  the  aggressors,  become  but  the 
exercise  of  rightful  authority.  And  consistency  with  their 
own  principles  requires  that  all  governments,  founded  on  the 
will  of  the  majority,  should  recognize  this  plea  as  a  sufficient 
justification  for  all  crimes  whatsoever. 

If  it  be  said  that  the  majority  should  be  allowed  to  rule,  not 
because  they  are  stronger  than  the  minority,  but  because  their 
superior  numbers  furnish  a  probability  that  they  are  in  the 
right;  one  answer  is,  that  the  lives,  liberties,  and  properties  of 
men  are  too  valuable  to  them,  and  the  natural  presumptions 
are  too  strong  in  their  favor,  to  justify  the  destruction  of  them 
by  their  fellow-men  on  a  mere  balancing  of  probabilities,  or  on 
any  ground  whatever  short  of  certainty  beyond  a  reasonable 
doubt.  This  last  is  the  moral  rule  universally  recognized  to 
be  binding  upon  single  individuals.  And  in  the  forum  of  con¬ 
science  the  same  rule  is  equally  binding  upon  governments, 
for  governments  are  mere  associations  of  individuals.  This  is 
the  rule  on  which  the  trial  by  jury  is  based.  And  it  is  plainly 
the  only  rule  that  ought  to  induce  a  man  to  submit  his  rights 
to  the  adjudication  of  his  fellow-men,  or  dissuade  him  from  a 
forcible  defence  of  them. 

Another  answer  is,  that  if  two  opposing  parties  could  be 
supposed  to  have  no  personal  interests  or  passions  involved,  to 
warp  their  judgments,  or  corrupt  their  motives,  the  fact  that 
one  of  the  parties  was  more  numerous  than  the  other,  (a  fact 
that  leaves  the  comparative  intellectual  competency  of  the  two 
parties  entirely  out  of  consideration,)  might,  perhaps,  furnish 
a  slight,  but  at  best  only  a  very  slight,  probability  that  such 
party  was  on  the  side  of  justice.  But  when  it  is  considered 
that  the  parties  are  liable  to  differ  in  their  intellectual  capaci¬ 
ties,  and  that  one,  or  the  other,  or  both,  are  undoubtedly  under 
the  influence  of  such  passions  as  rivalry,  hatred,  avarice,  and< 
ambition, —  passions  that  are  nearly  certain  to  pervert  their 


LIMITATIONS  UPON  THE  MAJORITY. 


209 


judgments,  and  very  likely  to  corrupt  their  motives, —  all 
probabilities  founded  upon  a  mere  numerical  majority,  in  one 
party,  or  the  other,  vanish  at  once ;  and  the  decision  of  the 
majority  becomes,  to  all  practical  purposes,  a  mere  decision  of 
chance.  And  to  dispose  of  men’s  properties,  liberties,  and 
lives,  by  the  mere  process  of  enumerating  such  parties,  is  not 
only  as  palpable  gambling  as  was  ever  practised,  but  it  is  also 
the  most  atrocious  that  was  ever  practised,  except  in  matters 
of  government.  And  where  government  is  instituted  on  this 
principle,  (as  in  the  United  States,  for  example,)  the  nation  is 
at  once  converted  into  one  great  gambling  establishment; 
where  all  the  rights  of  men  are  the  stakes;  a  few  bold  bad 
men  throw  the  dice — (dice  loaded  with  all  the  hopes,  fears, 
interests,  and  passions  which  rage  in  the  breasts  of  ambitious 
and  desperate  men,) — and  all  the  people,  from  the  interests 
they  have  depending,  become  enlisted,  excited,  agitated,  and 
generally  corrupted,  by  the  hazards  of  the  game. 

The  trial  by  jury  disavows  the  majority  principle  altogether ; 
and  proceeds  upon  the  ground  that  every  man  should  be  pre¬ 
sumed  to  be  entitled  to  life,  liberty,  and  such  property  as  he 
has  in  his  possession ;  and  that  the  government  should  lay  its 
hand  upon  none  of  them,  (except  for  the  purpose  of  bringing 
them  before  a  tribunal  for  adjudication,)  unless  it  be  first 
ascertained,  beyond  a  reasonable  doubt ,  in  every  individual 
case,  that  justice  requires  it. 

To  ascertain  whether  there  be  such  reasonable  doubt,  it 
takes  twelve  men  by  lot  from  the  whole  body  of  mature  men. 
If  any  of  these  twelve  are  proved  to  be  under  the  influence  of 
any  special  interest  or  passion,  that  may  either  pervert  their 
judgments,  or  corrupt  their  motives,  they  are  set  aside  as 
unsuitable  for  the  performance  of  a  duty  requiring  such  abso¬ 
lute  impartiality  and  integrity;  and  others  substituted  in  their 
stead.  When  the  utmost  practicable  impartiality  is  attained 
on  the  part  of  the  whole  twelve,  they  are  sworn  to  the  observ¬ 
ance  of  justice;  and  their  unanimous  concurrence  is  then  held 
to  be  necessary  to  remove  that  reasonable  doubt,  which,  unre¬ 
moved,  would  forbid  the  government  to  lay  its  hand  on  its 
victim. 

Such  is  the  caution  which  the  trial  by  jury  both  practises 
18* 


210 


TRIAL  BY  JURY. 


and  inculcates,  against  the  violation  of  justice,  on  the  part  of 
the  government,  towards  the  humblest  individual,  in  the 
smallest  matter  affecting  his  civil  rights,  his  property,  liberty, 
or  life.  And  such  is  the  contrast,  which  the  trial  by  jury  pre¬ 
sents,  to  that  gambler’s  and  robber’s  rule,  that  the  majority 
have  a  right,  by  virtue  of  their  superior  numbers,  and  without 
regard  to  justice,  to  dispose  at  pleasure  of  the  property  and 
persons  of  all  bodies  of  men  less  numerous  than  themselves. 

The  difference,  in  short,  between  the  two  systems,  is  this. 
The  trial  by  jury  protects  person  and  property,  inviolate  to 
their  possessors,  from  the  hand  of  the  law,  unless  justice, 
beyond  a  reasonable  doubt ,  require  them  to  be  taken.  The 
majority  principle  takes  person  and  property  from  their  pos¬ 
sessors,  at  the  mere  arbitrary  will  of  a  majority,  who  are 
liable  and  likely  to  be  influenced,  in  taking  them,  by  motives 
of  oppression,  avarice,  and  ambition. 

If  the  relative  numbers  of  opposing  parties  afforded  suffi¬ 
cient  evidence  of  the  comparative  justice  of  their  claims,  the 
government  should  carry  the  principle  into  its  courts  of  justice ; 
and  instead  of  referring  controversies  to  impartial  and  disin¬ 
terested  men, —  to  judges  and  jurors,  sworn  to  do  justice,  and 
bound  patiently  to  hear  and  weigh  all  the  evidence  and  argu¬ 
ments  that  can  be  offered  on  either  side, —  it  should  simply 
count  the  plaintiffs  and  defendants  in  each  case,  (where  there 
were  more  than  one  of  either,)  and  then  give  the  case  to  the 
majority;  after  ample  opportunity  had  been  given  to  the  plain¬ 
tiffs  and  defendants  to  reason  with,  flatter,  cheat,  threaten,  and 
bribe  each  other,  by  way  of  inducing  them  to  change  sides. 
Such  a  process  would  be  just  as  rational  in  courts  of  justice, 
as  in  halls  of  legislation ;  for  it  is  of  no  importance  to  a  man, 
who  has  his  rights  taken  from  him,  whether  it  be  done  by  a 
legislative  enactment,  or  a  judicial  decision. 

In  legislation,  the  people  are  all  arranged  as  plaintiffs  and 
defendants  in  their  own  causes ;  (those  who  are  in  favor  of  a 
particular  law,  standing  as  plaintiffs,  and  those  who  are 
opposed  to  the  same  law,  standing  as  defendants) ;  and  to 
allow  these  causes  to  be  decided  by  majorities,  is  plainly  as 
absurd  as  it  would  be  to  allow  judicial  decisions  to  be  deter¬ 
mined  by  the  relative  number  of  plaintiffs  and  defendants. 


LIMITATIONS  UPON  THE  MAJORITY. 


211 


If  this  mode  of  decision  were  introduced  into  courts  of  jus¬ 
tice,  we  should  see  a  parallel,  and  only  a  parallel,  to  that  sys¬ 
tem  of  legislation  which  we  witness  daily.  We  should  see 
large  bodies  of  men  conspiring  to  bring  perfectly  groundless 
suits,  against  other  bodies  of  men,  for  large  sums  of  money,  and 
to  carry  them  by  sheer  force  of  numbers;  just  as  we  now  con¬ 
tinually  see  large  bodies  of  men  conspiring  to  carry,  by  mere 
force  of  numbers,  some  scheme  of  legislation  that  will,  directly 
or  indirectly,  take  money  out  of  other  men’s  pockets,  and  put 
it  into  their  own.  And  we  should  also  see  distinct  bodies  of 
men,  parties  in  separate  suits,  combining  and  agreeing  all  to 
appear  and  be  counted  as  plaintiffs  or  defendants  in  each 
other’s  suits,  for  the  purpose  of  ekeing  out  the  necessary 
majority;  just  as  we  now  see  distinct  bodies  of  men,  interested 
in,  separate  schemes  of  ambition  or  plunder,  conspiring  to  carry 
through  a  batch  of  legislative  enactments,  that  shall  accomplish 
their  several  purposes. 

This  system  of  combination  and  conspiracy  would  go  on, 
until  at  length  whole  states  and  a  whole  nation  would  become 
divided  into  two  great  litigating  parties,  each  party  composed 
of  several  smaller  bodies,  having  their  separate  suits,  but  all 
confederating  for  the  purpose  of  making  up  the  necessary 
majority  in  each  case.  The  individuals  composing  each  of 
these  two  great  parties,  would  at  length  become  so  accustomed 
to  acting  together,  and  so  well  acquainted  with  each  others’ 
schemes,  and  so  mutually  dependent  upon  each  others’  fidelity 
for  success,  that  they  would  become  organized  as  permanent 
associations;  bound  together  by  that  kind  of  honor  that  pre¬ 
vails  among  thieves;  and  pledged  by  all  their  interests,  sym¬ 
pathies,  and  animosities,  to  mutual  fidelity,  and  to  unceasing 
hostility  to  their  opponents ;  and  exerting  all  their  arts  and 
all  their  resources  of  threats,  injuries,  promises,  and  bribes,  to 
drive  or  seduce  from  the  other  party  enough  to  enable  their 
own  to  retain  or  acquire  such  a  majority  as  would  be  neces¬ 
sary  to  gain  their  own  suits,  and  defeat  the  suits  of  their 
opponents.  All  the  wealth  and  talent  of  the  country  would, 
become  enlisted  in  the  service  of  these  rival  associations ; 
and  both  would  at  length  become  so  compact,  so  well  organ¬ 
ized,  so  powerful,  and  yet  always  so  much  in  need  of  recruits, 


212 


TRIAL  BY  JURY. 


that  a  private  person  would  be  nearly  or  quite  unable  to 
obtain  justice  in  the  most  paltry  suit  with  his  neighbor,  except 
on  the  condition  of  joining  one  of  these  great  litigating  associ¬ 
ations,  who  would  agree  to  carry  through  his  cause,  on  con¬ 
dition  of  his  assisting  them  to  carry  through  all  the  others, 
good  and  bad,  which  they  had  already  undertaken.  If  he 
refused  this,  they  would  threaten  to  make  a  similar  offer  to 
his  antagonist,  and  suffer  their  whole  numbers  to  be  counted 
against  him. 

Now  this  picture  is  no  caricature,  but  a  true  and  honest 
likeness.  And  such  a  system  of  administering  justice,  would 
be  no  more  false,  absurd,  or  atrocious,  than  that  system  of 
working  by  majorities,  which  seeks  to  accomplish,  by  legisla¬ 
tion,  the  same  ends  which,  in  the  case  supposed,  would  be 
accomplished  by  judicial  decisions. 

Again,  the  doctrine  that  the  minority  ought  to  submit  to 
the  will  of  the  majority,  proceeds,  not  upon  the  principle  that 
government  is  formed  by  voluntary  association,  and  for  an 
agreed  purpose ,  on  the  part  of  all  who  contribute  to  its  sup¬ 
port,  but  upon  the  presumption  that  all  government  must  be 
practically  a  state  of  Avar  and  plunder  between  opposing  par¬ 
ties;  and  that,  in  order  to  save  blood,  and  prevent  mutual 
extermination,  the  parties  come  to  an  agreement  that  they  will 
count  their  respective  numbers  periodically,  and  the  one  party 
shall  then  be  permitted  quietly  to  rule  and  plunder,  (restrained 
only  by  their  own  discretion,)  and  the  other  submit  quietly 
to  be  ruled  and  plundered,  until  the  time  of  the  next  enumer¬ 
ation. 

Such  an  agreement  may  possibly  be  wiser  than  unceasing 
and  deadly  conflict;  it  nevertheless  partakes  too  much  of  the 
ludicrous  to  deserve  to  be  seriously  considered  as  an  expedient 
for  the  maintenance  of  civil  society.  It  would  certainly  seem 
that  mankind  might  agree  upon  a  cessation  of  hostilities,  upon 
more  rational  and  equitable  terms  than  that  of  unconditional 
submission  on  the  part  of  the  less  numerous  body.  Uncondi¬ 
tional  submission  is  usually  the  last  act  of  one  who  confesses 
himself  subdued  and  enslaved.  How  any  one  ever  came  to 
imagine  that  condition  to  be  one  of  freedom,  has  never  been 
explained.  And  as  for  the  system  being  adapted  to  the  main- 


LIMITATIONS  UTON  THE  MAJORITY. 


213 


tenance  of  justice  among  men,  it  is  a  mystery  that  any  human 
mind  could  ever  have  been  visited  with  an  insanity  wild 
enough  to  originate  the  idea. 

If  it  be  said  that  other  corporations,  than  governments,  sur¬ 
render  their  affairs  into  the  hands  of  the  majority,  the  answer 
is,  that  they  allow  majorities  to  determine  only  trifling  mat¬ 
ters,  that  are  in  their  nature  mere  questions  of  discretion,  and 
where  there  is  no  natural  presumption  of  justice  or  right  on 
one  side  rather  than  the  other.  They  never  surrender  to  the 
majority  the  power  to  dispose  of,  or,  what  is  practically  the 
same  thing,  to  determine ,  the  rights  of  any  individual  member. 
The  rights  of  every  member  are  determined  by  the  written 
compact,  to  which  all  the  members  have  voluntarily  agreed. 

For  example.  A  banking  corporation  allows  a  majority  to 
determine  such  questions  of  discretion  as  whether  the  note  of 
A  or  of  B  shall  be  discounted;  whether  notes  shall  be  dis¬ 
counted  on  one,  two,  or  six  days  in  the  week  ;  how  many 
hours  in  a  day  their  banking-house  shall  be  kept  open  ;  how 
many  clerks  shall  be  employed ;  what  salaries  they  shall 
receive,  and  such  like  matters,  which  are  in  their  nature  mere 
subjects  of  discretion,  and  where  there  are  no  natural  presump¬ 
tions  of  justice  or  right  in  favor  of  one  course  over  the  other. 
But  no  banking  corporation  allows  a  majority,  or  any  other 
number  of  its  members  less  than  the  whole,  to  divert  the  funds 
of  the  corporation  to  any  other  purpose  than  the  one  to  which 
every  member  of  the  corporation  has  legally  agreed  that  they 
may  he  devoted ;  nor  to  take  the  stock  of  one  member  and 
give  it  to  another;  nor  to  distribute  the  dividends  among  the 
stockholders  otherwise  than  to  each  one  the  proportion  which 
he  has  agreed  to  accept,  and  all  the  others  have  agreed  that 
he  shall  receive.  Nor  does  any  banking  corporation  allow  a 
majority  to  impose  taxes  upon  the  members  for  the  payment 
of  the  corporate  expenses,  except  in  such  proportions  as 
every  member  has  consented  that  they  may  be  imposed.  All 
these  questions,  involving  the  rights  of  the  members  as  against 
each  other,  are  fixed  by  the  articles  of  the  association, —  that 
is,  by  the  agreement  to  which  every  member  has  personally 
assented. 

What  is  also  specially  to  be  noticed,  and  what  constitutes  a 


214 


TRIAL  BY  JURY. 


vital  difference  between  the  banking  corporation  and  the  polit¬ 
ical  corporation,  or  government,  is,  that  in  case  of  controversy 
among  the  members  of  the  banking  corporation,  as  to  the 
rights  of  any  member,  the  question  is  determined,  not  by  any 
number,  either  majority,  or  minority,  of  the  corporation  itself, 
hut  by  persons  out  of  the  corporation ;  by  twelve  men  acting  as 
jurors,  or  by  other  tribunals  of  justice,  of  which  no  member 
of  the  corporation  is  allowed  to  be  a  part.  But  in  the  case  of 
the  political  corporation,  controversies  among  the  parties  to  it, 
as  to  the  rights  of  individual  members,  must  of  necessity  be 
settled  by  members  of  the  corporation  itself,  because  there  are 
no  persons  out  of  the  corporation  to  whom  the  question  can  be 
referred. 

Since,  then,  all  questions  as  to  the  rights  of  the  members  of 
the  political  corporation,  must  be  determined  by  members  of 
the  corporation  itself,  the  trial  by  jury  says  that  no  man’s 
rights , —  neither  his  right  to  his  life,  his  liberty,  nor  his  prop¬ 
erty, —  shall  be  determined  by  any  such  standard  as  the  mere 
will  and  pleasure  of  majorities;  but  only  by  the  unanimous 
verdict  of  a  tribunal  fairly  representing  the  whole  people, — 
that  is,  a  tribunal  of  twelve  men,  taken  at  random  from  the 
wrhole  body,  and  ascertained  to  be  as  impartial  as  the  nature 
of  the  case  will  admit,  and  sworn  to  the  observance  of  justice. 
Such  is  the  difference  in  the  two  kinds  of  corporations ;  and 
the  custom  of  managing  by  majorities  the  mere  discretionary 
matters  of  business  corporations,  (the  majority  having  no  power 
to  determine  the  rights  of  any  member,)  furnishes  no  analogy 
to  the  practice,  adopted  by  political  corporations,  of  disposing 
of  all  the  rights  of  their  members  by  the  arbitrary  will  of 
majorities. 

But  further.  The  doctrine  that  the  majority  have  a  right 
to  rule,  proceeds  upon  the  principle  that  minorities  have  no 
rights  in  the  government;  for  certainly  the  minority  cannot 
be  said  to  have  any  rights  in  a  government,  so  long  as  the 
majority  alone  determine  what  their  rights  shall  be.  They 
hold  everything,  or  nothing,  as  the  case  may  be,  at  the-  mere 
will  of  the  majority. 

It  is  indispensable  to  a  “ free  government,”  (in  the  political 
sense  of  that  term,)  that  the  minority,  the  weaker  party,  have 


LIMITATIONS  UPON  THE  MAJORITY. 


215 


a  veto  upon  the  acts  of  the  majority.  Political  liberty  is  lib¬ 
erty  for  the  weaker  party  in  a  nation.  It  is  only  the  weaker 
party  that  lose  their  liberties,  ivhen  a  government  becomes 
oppressive.  The  stronger  party,  in  all  governments,  are  free 
by  virtue  of  their  superior  strength.  They  never  oppress 
themselves. 

Legislation  is  the  work  of  this  stronger  party;  and  if,  in 
addition  to  the  sole  power  of  legislating,  they  have  the  sole 
power  of  determining  what  legislation  shall  be  enforced,  they 
have  all  power  in  their  hands,  and  the  weaker  party  are  the 
subjects  of  an  absolute  government. 

Unless  the  weaker  party  have  a  veto,  either  upon  the  mak¬ 
ing,  or  the  enforcement  of  laws,  they  have  no  power  whatever 
in  the  government,  and  can  of  course  have  no  liberties  except 
such  as  the  stronger  party,  in  their  arbitrary  discretion,  see  fit 
to  permit  them  to  enjoy. 

In  England  and  the  United  States,  the  trial  by  jury  is  the 
only  institution  that  gives  the  weaker  party  any  veto  upon  the 
power  of  the  stronger.  Consequently  it  is  the  only  institution, 
that  gives  them  any  effective  voice  in  the  government,  or  any 
guaranty  against  oppression. 

Suffrage,  however  free,  is  of  no  avail  for  this  purpose; 
because  the  suffrage  of  the  minority  is  overborne  by  the  suf¬ 
frage  of  the  majority,  and  is  thus  rendered  powerless  for  pur¬ 
poses  of  legislation.  The  responsibility  of  officers  can  be  made 
of  no  avail,  because  they  are  responsible  only  to  the  majority. 
The  minority,  therefore,  are  wholly  without  rights  in  the  gov¬ 
ernment,  wholly  at  the  mercy  of  the  majority,  unless,  through 
the  trial  by  jury,  they  have  a  veto  upon  such  legislation  as 
they  think  unjust. 

Government  is  established  for  the  protection  of  the  weak 
against  the  strong.  This  is  the  principal,  if  not  the  sole, 
motive  for  the  establishment  of  all  legitimate  government. 
Laws,  that  are  sufficient  for  the  protection  of ‘the  weaker  party, 
are  of  course  sufficient  for  the  protection  of  the  stronger  party; 
because  the  strong  can  certainly  need  no  more  protection  than 
the  weak.  It  is,  therefore,  right  that  the  weaker  party  should 
be  represented  in  the  tribunal  which  is  finally  to  determine 
what  legislation  may  be  enforced;  and  that  no  legislation  shall 


216 


TRIAL  BY  JURY. 


be  enforced  against  their  consent.  They  being  presumed  to 
be  competent  judges  of  what  kind  of  legislation  makes  for 
their  safety,  and  what  for  their  injury,  it  must  be  presumed 
that  any  legislation,  which  they  object  to  enforcing,  tends  to 
their  oppression,  and  not  to  their  security. 

There  is  still  another  reason  why  the  weaker  party,  or  the 
minority,  should  have  a  veto  upon  all  legislation  which  they 
disapprove.  That  reason  is,  that  that  is  the  only  means  by 
which  the  government  can  be  kept  within  the  limits  of  the  con¬ 
tract,  compact,  or  constitution,  by  which  the  whole  people  agree 
to  establish  government.  If  the  majority  were  allowed  to 
interpret  the  compact  for  themselves,  and  enforce  it  according 
to  their  own  interpretation,  they  would,  of  course,  make  it 
authorize  them  to  do  whatever  they  wish  to  do. 

The  theory  of  free  government  is  that  it  is  formed  by  the 
voluntary  contract  of  the  people  individually  with  each  other. 
This  is  the  theory,  (although  it  is  not,  as  it  ought  to  be,  the 
fact.)  in  all  the  governments  in  the  United  States,  as  also  in 
the  government  of  England.  The  theory  assumes  that  each 
man,  who  is  a  party  to  the  government,  and  contributes  to  its 
support,  has  individually  and  freely  consented  to  it.  Other¬ 
wise  the  government  would  have  no  right  to  tax  him  for  its 
support, —  for  taxation  without  consent  is  robbery.  This  the¬ 
ory,  then,  necessarily  supposes  that  this  government,  which  is 
formed  by  the  free  consent  of  all,  has  no  powers  except  such 
as  all  the  parties  to  it  have  individually  agreed  that  it  shall 
have;  and  especially  that  it  has  no  power  to  pass  any  laws, 
except  such  as  all  the  parties  have  agreed  that  it  may  pass. 

This  theory  supposes  that  there  may  be  certain  laws  that 
will  be  beneficial  to  all, —  so  beneficial  that  all  consent  to  be 
taxed  for  their  maintenance.  For  the  maintenance  of  these 
specific  laws,  in  which  all  are  interested,  all  associate.  And 
they  associate  for  the  maintenance  of  those  laws  only,  in  which 
all  are  interested.  It  would  be  absurd  to  suppose  that  all 
would  associate,  and  consent  to  be  taxed,  for  purposes  which 
were  beneficial  only  to  a  part;  and  especially  for  purposes  that 
were  injurious  to  any.  A  government  of  the  whole,  therefore, 
can  have  no  powers  except  such  as  all  the  parties  consent  that 
it  may  have.  It  can  do  nothing  except  what  all  have  con- 


LIMITATIONS  UPON  THE  MAJORITY. 


217 


sented  that  it  may  do.  And  if  any  portion  of  the  people, —  no 
matter  how  large  their  number,  if  it  be  less  than  the  whole, — 
desire  a  government  for  any  purposes  other  than  those  that 
are  common  to  all,  and  desired  by  all,  they  must  form  a  sep¬ 
arate  association  for  those  purposes.  They  have  no  right, — 
by  perverting  this  government  of  the  whole,  to  the  accom¬ 
plishment  of  purposes  desired  only  by  a  part, —  to  compel  any 
one  to  contribute  to  purposes  that  are  either  useless  or  injuri¬ 
ous  to  himself. 

Such  being  the  principles  on  which  the  government  is 
formed,  the  question  arises,  how  shall  this  government,  when 
formed,  be  kept  within  the  limits  of  the  contract  by  which  it 
was  established  ?  How  shall  this  government,  instituted  by 
the  whole  people,  agreed  to  by  the  whole  people,  supported  by 
the  contributions  of  the  whole  people,  be  confined  to  the 
accomplishment  of  those  purposes  alone,  which  the  whole 
people  desire  ?  How  shall  it  be  preserved  from  degenerating  into 
a  mere  government  for  the  benefit  of  a  part  only  of  those  who 
established,  and  who  support  it?  How  shall  it  be  prevented 
from  even  injuring  a  part  of  its  own  members,  for  the  aggran¬ 
dizement  of  the  rest?  Its  laws  must  be,  (or  at  least  now 
are,)  passed,  and  most  of  its  other  acts  performed,  by  mere 
agents. —  agents  chosen  by  a  part  of  the  people,  and  not  by 
the  whole.  How  can  these  agents  be  restrained  from  seeking 
their  own  interests,  and  the  interests  of  those  who  elected  them, 
at  the  expense  of  the  rights  of  the  remainder  of  the  people, 
by  the  passage  and  enforcement  of  laws  that  shall  be  partial, 
unequal,  and  unjust  in  their  operation?  That  is  the  great 
question.  And  the  trial  by  jury  answers  it.  And  how  does 
the  trial  by  jury  answer  it?  It  answers  it,  as  has  already 
been  shown  throughout  this  volume,  by  saying  that  these 
mere  agents  and  attorneys,  who  are  chosen  by  a  part  only  of 
the  people,  and  are  liable  to  be  influenced  by  partial  and 
unequal  purposes,  shall  not  have  unlimited  authority  in  the 
enactment  and  enforcement  of  laws ;  that  they  shall  not  exer¬ 
cise  all  the  functions  of  government.  It  says  that  they  shall 
never  exercise  that  ultimate  power  of  compelling  obedience  to 
the  laws  by  punishing  for  disobedience,  or  of  executing  the 
laws  against  the  person  or  property  of  any  man,  without  first 
19 


218 


TKIAL  BY  JURY. 


getting  the  consent  of  the  people,  through  a  tribunal  that  may 
fairly  be  presumed  to  represent  the  whole,  or  substantially 
the  whole,  people.  It  says  that  if  the  power  to  make  laws, 
and  the  power  also  to  enforce  them,  were  committed  to  these 
agents,  they  would  have  all  power, —  would  be  absolute 
masters  of  the  people,  and  could  deprive  them  of  their  rights 
at  pleasure.  It  says,  therefore,  that  the  people  themselves 
will  hold  a  veto  upon  the  enforcement  of  any  and  every  law, 
which  these  agents  may  enact,  and  that  whenever  the  occa¬ 
sion  arises  for  them  to  give  or  withhold  their  consent, —  inas¬ 
much  as  the  whole  people  cannot  assemble,  or  devote  the  time 
and  attention  necessary  to  the  investigation  of  each  case, — 
twelve  of  their  number  shall  be  taken  by  lot,  or  otherwise  at 
random,  from  the  whole  body ;  that  they  shall  not  be  chosen 
by  majorities,  (the  same  majorities  that  elected  the  agents  who 
enacted  the  laws  to  be  put  in  issue,)  nor  by  any  interested  or 
suspected  party ;  that  they  shall  not  be  appointed  by,  or  be  in 
anyway  dependent  upon,  those  who  enacted  the  law;  that 
their  Opinions,  whether  for  or  against  the  law  that  is  in  issue, 
shall  not  be  inquired  of  beforehand ;  and  that  if  these  twelve 
men  give  their  consent  to  the  enforcement  of  the  law,  their 
consent  shall  stand  for  the  consent  of  the  whole. 

This  is  the  mode,  which  the  trial  by  jury  provides,  for  keep¬ 
ing  the  government  within  the  limits  designed  by  the  whole 
people,  who  have  associated  for  its  establishment.  And  it  is 
the  only  mode,  provided  either  by  the  English  or  American 
constitutions,  for  the  accomplishment  of  that  object. 

But  it  will,  perhaps,  be  said  that  if  the  minority  can  defeat 
the  will  of  the  majority,  then  the  minority  rule  the  majority. 
But  this  is  not  true  in  any  unjust  sense.  The  minority  enact 
no  laws  of  their  own.  They  simply  refuse  their  assent  to  such 
laws  of  the  majority  as  they  do  not  approve.  The  minority 
assume  no  authority  over  the  majority;  they  simply  defend 
themselves.  They  do  not  interfere  with  the  right  of  the 
majority  to  seek  their  own  happiness  in  their  own  way,  so 
long  as  they  (the  majority)  do  not  interfere  with  the  minority. 
They  claim  simply  not  to  be  oppressed,  and  not  to  be  com¬ 
pelled  to  assist  in  doing  anything  which  they  do  not  approve. 
They  say  to  the  majority,  “We  will  unite  with  you,  if  you 


LIMITATIONS  UPON  THE  MAJORITY. 


219 


desire  it,  for  the  accomplishment  of  all  those  purposes,  in 
which  we  have  a  common  interest  with  you.  You  can  cer¬ 
tainly  expect  us  to  do  nothing  more.  If  you  do  not  choose  to 
associate  with  us  on  those  terms,  there  must  be  two  separate 
associations.  You  must  associate  for  the  accomplishment  of 
your  purposes ;  we  for  the  accomplishment  of  ours.” 

In  this  case,  the  minority  assume  no  authority  over  the 
majority;  they  simply  refuse  to  surrender  their  own  liberties 
into  the  hands  of  the  majority.  They  propose  a  union ;  but 
decline  submission.  The  majority  are  still  at  liberty  to  refuse 
the  connection,  and  to  seek  their  own  happiness  in  their  own 
way,  except  that  they  cannot  be  gratified  in  their  desire  to 
become  absolute  masters  of  the  minority. 

But,  it  may  be  asked,  how  can  the  minority  be  trusted  to 
enforce  even  such  legislation  as  is  equal  and  just  1  The 
answer  is,  that  they  are  as  reliable  for  that  purpose  as  are  the 
majority;  they  are  as  much  presumed  to  have  associated,  and 
are  as  likely  to  have  associated,  for  that  object,  as  are  the 
majority;  and  they  have  as  much  interest  in  such  legislation 
as  have  the  majority.  They  have  even  more  interest  in  it ; 
for.  being  the  weaker  party,  they  must  rely  on  it  for  their 
security,  —  having  no  other  security  on  which  they  can  rely. 
Hence  their  consent  to  the  establishment  of  government,  and 
to  the  taxation  required  for  its  support,  is  presumed,  (although 
it  ought  not  to  be  presumed,)  without  any  express  consent 
being  given.  This  presumption  of  their  consent  to  be  taxed 
for  the  maintenance  of  laws,  would  be  absurd,  if  they  could 
not  themselves  be  trusted  to  act  in  good  faith  in  enforcing 
those  laws.  And  hence  they  cannot  be  presumed  to  have 
consented  to  be  taxed  for  the  maintenance  of  any  laws,  except 
such  as  they  are  themselves  ready  to  aid  in  enforcing.  It  is 
therefore  unjust  to  tax  them,  unless  they  are  eligible  to  seats 
in  a  jury,  with  power  to  judge  of  the  justice  of  the  laws. 
Taxing  them  for  the  support  of  the  laws,  on  the  assumption 
that  they  are  in  favor  of  the  laws,  and  at  the  same  time  refus¬ 
ing  them  the  right,  as  jurors,  to  judge  of  the  justice  of  the 
laws,  on  the  assumption  that  they  are  opposed  to  the  laws,  are 
flat  contradictions. 

But,  it  will  be  asked,  what  motive  have  the  majority,  when 


220 


TRIAL  BY  JURY. 


they  have  all  power  in  their  own  hands,  to  submit  their  will 
to  the  veto  of  the  minority? 

One  answer  is,  that  they  have  the  motive  of  justice.  It 
would  be  unjust  to  compel  the  minority  to  contribute,  by  tax¬ 
ation,  to  the  support  of  any  laws  which  they  did  not  approve. 

Another  answer  is,  that  if  the  stronger  party  wish  to  use 
their  power  only  for  purposes  of  justice,  they  have  no  occasion 
to  fear  the  veto  of  the  weaker  party ;  for  the  latter  have  as 
strong  motives  for  the  maintenance  of  just  government,  as 
have  the  former. 

Another  answer  is,  that  if  the  stronger  party  use  their  power 
unjustly ,  they  will  hold  it  by  an  uncertain  tenure,  especially 
in  a  community  where  knowledge  is  diffused;  for  knowledge 
will  enable  the  weaker  party  to  make  itself  in  time  the 
stronger  party.  It  also  enables  the  weaker  party,  even  while 
it  remains  the  weaker  party,  perpetually  to  annoy,  alarm,  and 
injure  their  oppressors.  Unjust  power, —  or  rather  power  that 
is  grossly  unjust,  and  that  is  known  to  be  so  by  the  minority, 
—  can  be  sustained  only  at  the  expense  of  standing  armies, 
and  all  the  other  machinery  of  force;  for  the  oppressed  party 
are  always  ready  to  risk  their  lives  for  purposes  of  vengeance, 
and  the  acquisition  of  their  rights,  whenever  there  is  any  tol¬ 
erable  chance  of  success.  Peace,  safety,  and  quiet  for  all,  can 
be  enjoyed  only  under  laws  that  obtain  the  consent  of  all. 
Hence  tyrants  frequently  yield  to  the  demands  of  justice  from 
those  weaker  than  themselves,  as  a  means  of  buying  peace 
and  safety. 

Still  another  answer  is,  that  those  who  are  in  the  majority 
on  one  law,  will  be  in  the  minority  on  another.  All,  there¬ 
fore,  need  the  benefit  of  the  veto,  at  some  time  or  other,  to 
protect  themselves  from  injustice. 

That  the  limits,  within  which  legislation  would,  by  this 
process,  be  confined,  would  be  exceedingly  narrow,  in  com¬ 
parison  with  those  it  at  present  occupies,  there  can  be  no 
doubt.  All  monopolies,  all  special  privileges,  all  sumptuary 
laws,  all  restraints  upon  any  traffic,  bargain,  or  contract,  that 
was  naturally  lawful,*  all  restraints  upon  men’s  natural 

*  Such  as  restraints  upon  banking,  upon  the  rates  of  interest,  upon  traffic  with  for¬ 
eigners,  &c.,  &e. 


LIMITATIONS  UPON  THE  MAJORITY. 


221 


rights,  the  whole  catalogue  of  mala  prohibila ,  and  all  taxa¬ 
tion  to  which  the  taxed  parties  had  not  individually,  severally, 
and  freely  consented,  would  be  at  an  end ;  because  all  such 
legislation  implies  a  violation  of  the  rights  of  a  greater  or  less 
minority.  This  minority  would  disregard,  trample  upon,  or 
resist,  the  execution  of  such  legislation,  and  then  throw  them¬ 
selves  upon  a  jury  of  the  whole,  people  for  justification  and 
protection.  In  this  way  all  legislation  would  be  nullified, 
except  the  legislation  of  that  general  nature  which  impartially 
protected  the  rights,  and  subserved  the  interests,  of  all.  The 
only  legislation  that  could  be  sustained,  would  probably  be 
such  as  tended  directly  to  the  maintenance  of  justice  and  lib¬ 
erty  ;  such,  for  example,  as  should  contribute  to  the  enforce¬ 
ment  of  contracts,  the  protection  of  property,  and  the  preven¬ 
tion  and  punishment  of  acts  intrinsically  criminal.  In  short, 
government  in  practice  would  be  brought  to  the  necessity  of  a 
strict  adherence  to  natural  law,  and  natural  justice,  instead  of 
being,  as  it  now  is,  a  great  battle,  in  which  avarice  and  ambi¬ 
tion  are  constantly  fighting  for  and  obtaining  advantages  over 
the  natural  rights  of  mankind. 

19* 


APPENDIX 


TAXATION. 

It  was  a  principle  of  the  Common  Law,  as  it  is  of  the  law  of  nature,  and  of 
common  sense,  that  no  man  can  be  taxed  without  his  personal  consent.  The 
Common  Law  knew  nothing  of  that  system,  which  now  prevails  in  England,  of 
assuming  a  man’s  own  consent  to  be  taxed,  because  some  pretended  representa¬ 
tive,  whom  he  never  authorized  to  act  for  him,  has  taken  it  upon  himself  to 
consent  that  he  may  be  taxed.  That  is  one  of  the  many  frauds  on  the  Common 
Law,  and  the  English  constitution,  which  have  been  introduced  since  Magna 
Carta.  Having  finally  established  itself  in  England,  it  has  been  stupidly  and 
servilely  copied  and  submitted  to  in  the  United  States. 

If  the  trial  by  jury  were  reestablished,  the  Common  Law  principle  of  taxation 
would  be  reestablished  with  it ;  for  it  is  not  to  be  supposed  that  juries  would 
enforce  a  tax  upon  an  individual  which  he  had  never  agreed  to  pay.  Taxation 
without  consent  is  as  plainly  robbery,  when  enforced  against  one  man,  as  when 
enforced  against  millions  ;  and  it  is  not  to  be  imagined  that  juries  could  be  blind 
to  so  self-evident  a  principle.  Taking  a  man’s  money  without  his  consent,  is  also 
as  much  robbery,  when  it  is  done  by  millions  of  men,  acting  in  concert,  and 
calling  themselves  a  government,  as  when  it  is  done  by  a  single  individual,  act¬ 
ing  on  his  own  responsibility,  and  calling  himself  a  highwayman.  Neither  the 
numbers  engaged  in  the  act,  nor  the  different  characters  they  assume  as  a  cover 
for  the  act,  alter  the  nature  of  the  act  itself. 

If  the  government  can  take  a  man’s  money  without  his  consent,  there  is  no 
limit  to  the  additional  tyranny  it  may  practise  upon  him  ;  for,  with  his  money, 
it  can  hire  soldiers  to  stand  over  him,  keep  him  in  subjection,  plunder  him  at 
discretion,  and  kill  him  if  he  resists.  And  governments  always  will  do  this,  as 
they  everywhere  and  always  have  done  it,  except  where  the  Common  Law  prin¬ 
ciple  has  been  established.  It  is  therefore  a  first  principle,  a  very  sine  qua  non 
of  political  freedom,  that  a  man  can  be  taxed  only  by  his  personal  consent  And 
the  establishment  of  this  principle,  with  trial  by  jury,  insures  freedom  of  course  ; 
because  :  1.  No  man  would  pay  his  money  unless  he  had  first  contracted  for  such 
a  government  as  he  was  willing  to  support ;  and,  2.  Unless  the  government  then 
kept  itself  within  the  terms  of  its  contract,  juries  would  not  enforce  the  payment 
of  the  tax.  Besides,  the  agreement  to  be  taxed  would  probably  be  entered  into 
but  for  a  year  at  a  time.  If,  in  that  year,  the  government  proved  itself  either 
inefficient  or  tyrannical,  to  any  serious  degree,  the  contract  would  not  be  renewed. 


APPENDIX. 


223 


The  dissatisfied  parties,  if  sufficiently  numerous  for  a  new  organization,  would 
form  themselves  into  a  separate  association  for  mutual  protection.  If  not  suffi¬ 
ciently  numerous  for  that  purpose,  those  who  were  conscientious  would  forego  all 
governmental  protection,  rather  than  contribute  to  the  support  of  a  government 
which  they  deemed  unjust. 

All  legitimate  government  is  a  mutual  insurance  company,  voluntarily  agreed 
upon  by  the  parties  to  it,  for  the  protection  of  their  rights  against  wrong-doers. 
In  its  voluntary  character  it  is  precisely  similar  to  an  association  for  mutual 
protection  against  fire  or  shipwreck.  Before  a  man  will  join  an  association  for 
these  latter  purposes,  and  pay  the  premium  for  being  insured,  he  will,  if  he  be  a 
man  of  sense,  look  at  the  articles  of  the  association  ;  see  what  the  company  prom¬ 
ises  to  do  ;  what  it  is  likely  to  do  ;  and  what  are  the  rates  of  insurance.  If  he 
be  satisfied  on  all  these  points,  he  will  become  a  member,  pay  his  premium  for  a 
year,  and  then  hold  the  company  to  its  contract.  If  the  conduct  of  the  company 
prove  unsatisfactory,  he  will  let  his  policy  expire  at  the  end  of  the  year  for  which 
he  has  paid  ;  will  decline  to  pay  any  further  premiums,  and  either  seek  insur¬ 
ance  elsewhere,  or  take  his  own  risk  without  any  insurance.  And  as  men  act  in 
the  insurance  of  their  ships  and  dwellings,  they  would  act  in  the  insurance  of 
their  properties,  liberties  and  lives,  in  the  political  association,  or  government. 

The  political  insurance  company,  or  government,  have  no  more  right,  in  nature 
or  reason,  to  assume  a  man’s  consent  to  be  protected  by  them,  and  to  be  taxed 
for  that  protection,  when  he  has  given  no  actual  consent,  than  a  fire  or  marine 
insurance  company  have  to  assume  a  man’s  consent  to  be  protected  by  them,  and 
to  pay  the  premium,  when  his  actual  consent  has  never  been  given.  To  take  a 
man’s  property  without  his  consent  is  robbery  ;  and  to  assume  his  consent,  where 
no  actual  consent  is  given,  makes  the  taking  none  the  less  robbery.  If  it  did, 
the  highwayman  has  the  same  right  to  assume  a  man’s  consent  to  part  with  his 
purse,  that  any  other  man,  or  body  of  men,  can  have.  And  his  assumption  would 
afford  as  much  moral  justification  for  his  robbery  as  does  a  like  assumption,  on 
the  part  of  the  government,  for  taking  a  man’s  property  without  his  consent. 
The  government’s  pretence  of  protecting  him,  as  an  equivalent  for  the  taxation, 
affords  no  justification.  It  is  for  himself  to  decide  whether  he  desires  such  pro¬ 
tection  as  the  government  offers  him.  If  he  do  not  desire  it,  or  do  not  bargain 
for  it,  the  government  has  no  more  right  than  any  other  insurance  company  to 
impose  it  upon  him,  or  make  him  pay  for  it. 

Trial  by  the  country,  and  no  taxation  without  consent,  were  the  two  pillars  of 
English  liberty,  (when  England  had  any  liberty,)  and  the  first  principles  of  the 
Common  Law.  They  mutually  sustain  each  other  ;  and  neither  can  stand  with¬ 
out  the  other.  Without  both,  no  people  have  any  guaranty  for  their  freedom  ; 
with  both,  no  people  can  be  otherwise  than  free.* 


*  Trial  by  the  country,  and  no  taxation  without  consent,  mutually  sustain  each  other,  and  can  be 
sustained  only  by  each  other,  for  these  reasons :  1.  Juries  would  refuse  to  enforce  a  tax  against 
a  man  who  had  never  agreed  to  pay  it.  They  would  also  protect  men  in  forcibly  resisting  the 
collection  of  taxes  to  which  they  had  never  consented.  Otherwise  the  jurors  would  authorize  the 
government  to  tax  themselves  without  their  consent,  —  a  thing  which  no  jury  would  be  likely  to  do. 
In  these  two  ways,  then,  trial  by  the  country  would  sustain  the  principle  of  no  taxation  without 
consent.  2.  On  the  other  hand,  the  principle  of  no  taxation  without  consent  would  sustain  the 
trial  by  the  country,  because  men  in  general  would  not  consent  to  be  taxed  for  the  support  of  a 


224 


APPENDIX. 


By  what  force,  fraud,  and  conspiracy,  on  the  part  of  kings,  nobles,  and  “  a 
few  wealthy  freeholders,”  these  pillars  have  been  prostrated  in  England,  it  is 
designed  to  show  more  fully  in  the  next  volume,  if  it  should  be  necessary. 


government  under  which  trial  by  the  country  was  not  secured.  Thus  these  two  principles  mutually 
sustain  each  other. 

But,  if  either  of  these  principles  were  broken  down,  the  other  would  fall  with  it,  and  for  these 
reasons :  1.  If  trial  by  the  country  were  broken  down,  the  principle  of  no  taxation  without 
consent  would  fall  with  it,  because  the  government  would  then  be  able  to  tax  the  people  without 
their  consent,  inasmuch  as  the  legal  tribunals  would  be  mere  tools  of  the  government,  and  would 
enforce  such  taxation,  and  punish  men  for  resisting  such  taxation,  as  the  government  ordered. 
2.  On  the  other  hand,  if  the  principle  of  no  taxation  without  consent  were  broken  down,  trial  by 
the  country  would  fall  with  it,  because  the  government,  if  it  could  tax  people  without  their  consent, 
would,  of  course,  take  enough  of  their  money  to  enable  it  to  employ  all  the  force  necessary  for 
sustaining  its  own  tribunals,  (in  the  place  of  juries,)  and  carrying  their  decrees  into  execution. 


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